,ast 


f^-r^jjw^pw'^ 


M.  S.  BOW  EN. 


THE  LIBRARY 

OF 

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OF  CALIFORNIA 

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VALUABLE    LAW    BOOKS, 


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ment of  Jurisprudence,  including  many  rare  and  valuable  French  works.  Catalogues 
may  be  had  upon  application. 


KENT'S  COTOIENTAIIIES. 

NEW   EDITION. 

Commentaries  on  American  Law.  By  Hon.  James  Kent. 
Ninth,  and  entirely  revised  Edition.  By  Hon.  William  Kext.  4  vols. 
8vo.    S16.00. 

"  The  Commentaries  consist  of  a  series  of  lectures,  which  were  delivered  in  the  dis- 
charge of  the  duties  of  Professor  of  Law  in  Columbia  College,  New  York 

"  In  every  part  of  our  wide  spread  country,  wherever  law  has  penetrated  with  its  life- 
giving  influences,  wherever  justice  is  administered,  this  work  is  regarded  as  a  guide 
and  authority 

"In  the  various  subjects  which  occupy  his  attention  in  the  course  of  his  work,  he  is 
uniformly  clear  and  satisfactory,  and  the  ciiarms  of  a  beautiful  style  enhance  the  jurid- 
ical interest  of  the  Commentaries. 

"It  is  regarded  by  all  as  an  imperishable  addition,  at  once  to  the  literature  and  sci- 
ence of  the  law.  It  is  found  in  the  library  of  every  lawyer  of  every  State  in  the  Union ; 
and  in  all,  its  diligent  study  has  become  a  necessary  part  of  legal  education.  By  the 
suffrage  of  the  most  enlightened  of  the  profession  in  England,  as  well  as  in  the  United 
States,  it  has  attained  a  fixed  and  permanent  rank.  It  is  with  the  immortal  Commenta- 
ries on  the  Laws  of  England,  that  those  ou  American  Law  are  now  classed,  and  the 
names  of  Blackstone  and  Kent  are  fated  never  to  be  disjoined."  —  Laic  Repoi-t»r. 


UNITED  STATES  SUPREME  COURT  DECISIONS. 
Reports   of  Decisions  in   the   Supreme  Court  of  the  United 

States.     "With  Notes  and  a  Digest.     By  B.  K.  Curtis,  one  of  the  Associate 

Justices  of  the  Court.     In  22  vols.  8vo,  including  a  Digest.     SCo.OO. 

These  Reports  comprise  Oie  Cases  repoi'led  bij  Dallas,  4  vols. ;  Cranch,  9  vols. ;  miealon, 
12  rvls. ;  Peters,  16  wis. ;  Howard,  17  vols. ;  in  all,  58  vols.  They  comprise  the  entire  pe- 
riod from  Oie  origin  of  the  Court  to  the  close  of  the  December  Term,  1854.  The  Cataloyue 
price  of  the  Old  Series  is  S222.  Jud(/e  Curtis's  edition  is  offered  at  the  low  price  of  $3  a 
roliime,  or  §06  for  the  whole,  including  the  Digest. 

"  The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  heen  printed  by  the 
nuthorized  reporters,  alter  correcting  such  errors  of  the  press  or  of  citation,  as  a  careful 
examination  of  the  text  has  disclosed.  I  have  endeavored  to  give,  in  the  head-notes, 
the  substance  of  each  decision.  They  are  designed  to  show  the  points  decided  by  the 
Court,  not  the  dicta  or  reasonings  of  the  Judges.  To  each  case  is  appended  a  note  re- 
ferring to  all  subsequent  decisions  in  which  the  case  in  the  text  has  been  mentioned.  It 
will  thus  be  easy  to  ascertain  whether  a  decision  has  been  overruled,  doubted,  qualified, 
explained,  or  alhrmcd;  and  to  see  what  other  applications  have  been  made  of  the  same 
or  analogous  principles."  —  Extract  from  the  Preface. 


DIGEST  OF  THE  U.  S.  SUPREME  COURT  DECISIONS. 
A  Digest  of  the  Decisions  of  the  Supreme  Court  of  the  United 
States,  from  the  Origin  of  the  Court  to  the  Close  of  the  December  Term, 
1854.     By  B.  K.  Cuktis,  one  of  the  Associate  Justices  of  the  Court.     8vo. 
S5.50. 

This  Digest  embraces  all  the  published  decisions  of  the  Supreme  Court  down  to  the 
present  time,  including  seventeenth  Howard.  It  is  so  arranged  that  it  may  be  used  in 
connection  with  the  Keports  of  Messrs.  Dallas,  Cranch,  Wheaton,  Peters,  and  Howard, 
or  with  the  twenty-one  volumes  of  decisions  as  published  by  Mr.  Justice  Curtis  (of 
which  it  fonns  the  twenty-second  volume). 

It  contains  a  table  of  all  Acts  of  Congress  construed  or  referred  to  by  the  court  in 
their  oi)inions,  arranged  in  chronological  order;  with  references  to  the  cases,  and  an  ap- 
pendix of  practical  directions  for  prosecuting  writs  of  error  and  appeids  to  the  Supremo 
Court  of  the  United  States,  with  the  necessary  forms;  and  also  a  table  of  the  cases  de- 
cided, and  another  of  the  cases  cited  by  the  court  in  their  opinions. 


UNITED  STATES  STATUTES  AT  LARGE. 

Laws  of  the  United  States  of  America,  from  the  Organizalion 
of  the  (lovernnieiit  in  ITHU  to  the  present  time.  I'uljlisheil  hy  direction 
and  under  the  patronage  of  Congress.  Complete  to  18.j5,  including  the 
Synojjtical  Index.     11  vols.   Royal  8vo.     Slt.'»0. 

A  Comph.'te  Synoptictal  Index  lo  the;  liaws  and  'I'reatic-s  t)f 
the  United  StatcH  of  America,  from  .Miirdi  1.  1 7s:i,  to  .M.ncli  .i,  18.")!, 
being  Vol.  X.  of  the  I'nited  SlatcH  J^aws.  I'rcpared  under  the  direc- 
tion of  the  .Ser-rrLiry  ol'  llic   Si'n;ilr.      Uoyal  Hvo.     I'rice  SI. 00. 

Lawrtof  th.-  SesHons  of  |S;j;j,  185G,  1857,  and  185S-51).  In 
Five  Tarts,  Uoyal  Hvo,  Htit<lMd.     Trice  Sl.7.'). 


"  These  volumes  comprise  all  the  Statutes  of  the  United  States,  from  the  organization 
of  the  government  in  1789  to  IMarch  3,  1858.  They  are  arranged  in  chronological  order, 
with  reference  to  subsequent  acts  on  the  same  subject;  with  copious  notes  on  the  decis- 
ions of  the  United  States  Courts  construing  those  acts.  Each  volume  contains  an  Index 
of  its  contents ;  and  the  Synoptical  Index  to  the  whole  forms  the  tenth  volume.  In  the 
last  volume  may  be  found  tables  containing  lists  of  the  acts  relating  to  the  judiciary, 
imports  on  tonnage,  public  lands,  &c.  This  edition  has  the  sanction  of  Congress,  and  is 
issued  under  their  auspices,  as  will  be  seen  by  the  following  extract  from  the  Act  of 
Congress,  August  8th,  1846. 

"And  whereas  said  edition  of  the  said  Laws  and  Treaties  of  the  United  States 
has  been  i^refulhj  collated  and  compared  with  the  original  Rolls  in  the  Archives  of  the  Gov- 
ernment^ under  the  inspection  and  supervision  of  the  Attorney- General  of  the  United 
States,  as  duly  certified  by  that  officer:  Therefore  be  it  further  enacted,  that  said  Edi- 
tion of  the  Laws  and  Tkeaties  of  the  United  States,  published  by  Little  & 
Brown,  is  hereby  declared  to  be  competent  evidence  of  the  several  public  and  private 
Acts  of  Congress,  and  of  the  several  Treaties  therein  contained,  in  all  the  Courts  of  Law 
and  Equity  and  JIaritime  Jurisdiction,  and  in  all  the  Tribunals  and  Public  Offices  of 
the  United  States  and  of  the  several  States,  icithout  any  further  jiroof  or  authentication 
thereof." 


UNITED  STATES  DIGEST  TO  1857. 

Digest  of  the  Decisions  of  the  Courts  of  Common  Law  and 

Admiralty  in  the  United  States.     1 7  vols.  Royal  8vo.     S98.00. 
Comprising  the  following:  — 

Vol.    I.  By  Theron  Metcalf  and  J.  C.  Perkins $7.50 

"      II.  By  George  T.  Curtis 7.50 

"    III.  By  George  T.  Curtis 7.50 

"    IV.  Supplement  to  do.  Vol.  I.    By  John  Phelps  Putnam        .        .        .    7.50 
"      V.  "  "        Vol.  IL     By  John  Phelps  Putnam     .        .        .        7.50 

"     VI.  Table  of  Cases  to  the  above.     By  G.  P.  Sanger        ....     5.50 
"   VU.  to  XVU.    Annual  Digest  for  1847-1857,  11  vols.     By  J.  P.  Putnam 

and  G.  S.  Hale 55.00 

The  annual  volumes  contain  the  Equity  in  addition  to  the  Common  Law  and  Admi- 
ralty; and  Vols.  XL  and  after  embrace  a  digest  of  our  series  of  "English  Law  and 
Equity  Reports." 

"  The  Annual  Digest  has  long  since  become  indispensable  to  the  practitioner;  it  is 
impossible  without  such  aid  to  keep  pace  in  any  degree  with  the  times."  —  Law  Re- 
porter. 

"  The  above  work  is  so  well  known  to  the  profession  that  it  is  only  necessaiy  to  an- 
nounce that  a  new  volume  is  out.  The  present  volume,  the  17th,  is  worthy  of  its  pre- 
decessors. Lawyers  who  have  access  to  all  the  Reports  of  all  the  States,  know  how 
valuable  the  whole  series  is,  to  enable  them  to  find  the  discussion  of  the  courts,  and 
those  who  have  not,  will  find  in  the  complete  United  States  Digest  the  only  substitute." 
—  Louisville  Courier. 


UNITED  STATES  EQUITY  DIGEST. 

A  Digest  of  the   Reports  in    Equity,  decided  in  the  United 
States  Courts  of  the  Several  States,  from  the  earliest  period  to  the  present 


time.  In  two  volumes,  corresponding  with  the  United  States  Digest  of 
Common  Law  and  Admiralty  Reports,  by  ^lessrs.  ^Metoalf'  Perkins,  Curtis, 
and  Putnam,  and  Ibrming,  with  that,  a  complete  Digest  of  all  the  Reports 
to  1847,  from  which  period  Mr.  Putnam's  Digest  will  include  the  Common 
Law,  Admiralty,  and  Equity  Reports,  with  a  Table  of  all  the  Reports  com. 
prised  in  the  Digest,  and  a  Table  of  all  the  Cases  reported.  By  Joiix 
PuKLPS  Putnam,  of  the  Boston  Bar.     2  vols,  luiyal  8vo.     S12.00. 

MASSACHUSETTS  REPORTS. 
Reports   of   Cases  Argued   and   Delcnniucd   in   the   Supreme 

Judicial  Court  of  Massachusetts.     71  vols.  8vo.     Law  sheep,  S32I.00. 
Comprising:  — 

Massachusetts  Reports.    17  vols S51.00 

rickering-s  "  24    " 120.00 

MetcAlfs  "  13    " 65.00 

CushiDg's  "  12    " 60.00 

Gray's  "  5    " 25.00 

ADMIRALTY  REPORTS  (kxglish). 
A  Complete  Series  of  ;ill  ilie  Ihiglish  Admiralty  Reports,  down 
to  Part  III.  of  W.  Robinson's  llcp.  Vol.  III.  (or  to  the  commencement  of 
our  series  of"  English  Law  and  Ecjuity  Reports,")  and  comprising  all  cases 
reported  in  the  seven  volumes  of  Notes  of  Cases  which  are  not  contained  in 
the  regular  Reports,  ami  all  the  Appeal  Cases  in  Knapp's  P.  C.  Rep.  and 
Moore's  P.  C.  Rep.  Edited,  with  Notes,  References,  &c.,  by  GKORGii  Mi- 
XOT,  Esq.     'J  vols.  8vo.  S3 1.50. 

Vol.   I.  contains  1  and  2  C.  Robinson. 
II.         "        3  and  4  " 

III.  "        5and0  " 

IV.  '•        Edwards,  Hay,  and  Marriott;  nnd  Privj' Council  Cases. 
V.        "        1  and  2  Acton,  and  selections  from  Notes  of  Cases. 

^  I.  "  1  and  2  Dodson. 

\  II.  "  1  and  2  Hag|i;ard. 

\III.  •'  .*}  Ilnpfjnrd  and  1  Wm.  Robinson. 

I.\.  "  2  and  3,  Parts  1  and  2,  Wm.  Robinson. 


ENGLISH  RAILWAY  AND  CANAL  CASES. 
Cases  relating  to  Railways  antl  Canals,  Argued  and  Adjudgetl 
in  the  Courts  of  Law  an«I  Ivpiity,  from  IS.I.'i  to  1852,  from  the  London 
Edition.     Edited  by  CiiAUSer.v  Smith  and  Samci  i.  W.  irvTKS,  Esqrs. 
C  vr)l.H.     8vo.     S2J.00. 

Tlio  KnglinU  edition  of  tbJH  work  contAinii  all  iUc  Railway  and  Canal  ca.<<cs  aiijud^cd 
in  the  Law  and  lliiiiily  Cotirfu  of  liiif^lund,  Kiibseijuciit  to  the  yi-ar  1H35,  together  witii  a 
digest  of  thf/no  adjiid^rd  i>rcvioii»iy  to  that  year.  In  thitt  I'dition  the  digest  is  oniitto<l. 
But  nil  the  cn»eii  embnioed  in  llio  digest  have  been  carefully  exaniiiicd,  and  those  lienr- 
Ing  upfin  AnxTionn  Uaihvay  law  have  b<'on  printed  in  tlio  Appendix  to  the  (irst  vojumo. 
Thii  o'lilion,  lh«T<'i'ijrr,  cintiiiin  tlic  \ivM  coiiuilete  culluc.tion  of  Knglish  li.'.ilway  cases 


ever  published.    Notes  have  been  added  by  the  American  editors  to  those  cases  where 
the  questions  considered  have  been  decided  in  this  country. 


AMERICAN  RAILWAY  CASES. 
Cases  relating  to  the  Law  of  Railways  —  Decided  in  the  Su- 
preme Court  of  the  United  States,  and  in  tlic  Courts  of  the  several  States, 
with   Notes,   by  Chauxcey   Smith  and   Samuel  W.   Bates,   Esqrs., 
Counsellors  at  Law.     2  vols.     8vo.     $0.00. 

BISHOP  ON  MARRIAGE  AND  DIVORCE. 

>"E\V   EDITIOX. 

Commentaries  on  the  Law  of  Marriage  and  Divorce,  and  Evi- 
dence in  Matrimonial  Suits.  By  Joel  Prextiss  Bishop,  Esq.  Third 
Edition,  revised  and  enlarged.     8vo.     S5.50. 

The  present  edition  of  this  volume  has  been  thoroughly  revised,  much  of  it  has  been 
rewritten,  the  matter  has  been  retrenched  in  some  places,  and  expanded  in  others ;  new 
discussions  of  points  have  been  introduced,  and  the  whole  has  been  so  altered  and  im- 
proved as  to  make  it  essentially  a  new  work.  The  cases  are  cited  as  far  as  published, 
down  to  the  present  time. 


BISHOP  ON  CRIMINAL  LAW. 

XEW  EDITION. 

Commentaries  on  Criminal  Law.  By  Joel  Prentiss  Bishop, 
Esq.,  author  of  "  Commentaries  on  the  Law  of  Marriage  and  Divorce." 
Yol.  I.     Second  Edition,  revised  and  enlarged.     8vo.     $5.50^ 

Commentaries  on  Criminal  Law.  By  Joel  Prentiss  Bishop, 
Esq.,  Vol.  IL,  containing  the  Law  of  Specific  Offences.     Bvo.     S5.50. 

"  It  is  true,  albeit  strange,  that  in  this  country  (England)  no  such  work  as  a  philosophi- 
cal treatise  upon  Cri-minal  Law  in  fact  exists.  .  .  . 

"  We  have  formed,  after  no  slight  examination,  a  favorable  opinion  of  Mr.  Bishop's 
book.  Sure  we  are,  at  all  events,  that  the  author  is  really  a  conscientious'  writer,  and 
equally  sure  we  are  that  he  is  quite  sufficiently  self-reliant,  and  not  likely  very  readily 
to  be  led  astray  by  erroneous  dicta  or  fallacious  reasoning. 

"  Mr.  Bishop  treats  his  subject  in  a  philosophical  spirit;  and  although  we  might  not 
always  agree  in  bis  conclusions,  our  impression  on  looking  through  this  volume  is  very 
strong  that  he  is  a  pains-taking,  and  truth-loving  writer,  and  we  can  affirm  that  in  style 
he  is  vastly  superior  to  the  great  majority  of  writers  of  law  books  in  this  country,  who 
would  do  well  in  their  own  treatises  to  imitate  the  excellences  which  throughout  these 
pages  are  abundantly  apparent."  —  London  Law  Magazine  and  Review,  Nm.  1858. 


REDFIELD  ON  THE  LAW  OF  RAILWAYS. 

NEW   EDITIOX. 

A  Practical  Treatise  on  the  Law  of  Railways.  By  Isaac 
F.  Redfield,  LL.D.,  Chief  Justice  of  Vermont  Second  Edition,  en- 
larged.    Svo.     S5.50. 


"  Mr.  Justice  Hofrmnn,  of  the  Superior  Court  of  New  York,  in  deciding  the  case  of 
Owen  r.  The  Hudson  River  Raiin^ad  Company,  cited  the  above-mentioned  work,  and 
took  occasion  to  say,  that  he  looked  upon  it  as  one  of  the  most  vahiable  treatises  that 
had  been  fur  many  years  otlerod  to  the  profession.  In  his  humble  jud;;ment,  it  would 
constitute  a  text-book,  which  might  indeed  be  added  to  and  improved,  but  could  not 
be  superseded." 

"  To  sum  up  our  conclusion,  after  a  somewhat  more  than  usual  considcmtion  of  the 
book,  we  find  it  to  have  performed  the  promise  of  the  preface,  and  that  the  learned 
labors  of  a  distinguished  and  able  jurist  have  shed  great  light  upon  a  difficult  and  com- 
plicated branch  of  legal  learning."  —  American  Law  Iie</ister. 


DRAKE  ON  ATTACHMENT. 

m:\v  i;i>itk)N. 

A  Treatise  on  the  Law  of  Suits  by  Attachment  in  the  United 
States.  By  Ciiaki.ks  D.  Drakk,  of  St.  Louis,  Missouri.  Second  Edition. 
Revised  and  enlarged,  with  References  to  all  Reported  Cases  of  general 
utility  contained  in  the  Reports  of  the  several  State  and  United  States 
Courts,  down  to  the  date  of  publication.     8vo.     S5.50. 

"The  book  is  remarkably  well  written,  in  a  clear  and  easy  style,  with  abundant  re- 
search, and  yet  without  redundancy.  Decisions  are  cited  from  all  the  States,  and  they 
have  all  been  faithfully  examined,  and  carefully  entered  into  the  text  by  the  author 
himself,  so  that  the  whole  is  his  treatise,  and  not  merely  a  compilation  or  digest."  — 
Law  lUporter. 

"  It  meet«  an  important  want  of  the  profession,  hitherto  wholly  unsuppUcd."  —  Ckvt- 
land  Herald. 

"  The  repeated  citation  of  Mr.  Drake's  work  by  the  Courts  of  the  diflerent  States, 
and  \\A  evc^ilay  use  in  the  office  of  the  attorney  and  magistrate,  furnish  the  best  evi- 
dence of  its  general  utility." — Jiichmond  Examiner. 


BROWNE  ON  THE  STATUTE  OF  FRAUDS. 
A  Treatise  on  the   Con.struction  of  the   Siniiiic  of   l-'rands,  as 
in  force  in  Enjiiaml  and  llie  United  SlaU-s;  with  an  Appi^ndix,  containing 
the  exi.sting  Kiigli^h  and  American  Statutis.   Hy  Cau.stkn  Bkow.m.,  Ks(i., 
of  the  Boston  Bar.     bvo.     $5.00. 

Thi*  book  aims  to  present  a  full  view  oi  the  I.uw,  as  held  by  tlio  Knglish  ami  Amer- 
ican Court*,  uiHjn  the  construction  of  the  Statute  20  Cur.  2,  cap.  8,  with  the  modifica- 
tions under  which  it  has  been  adopted  in  tlu-  dillerent  States  of  the  Union,  comprising 
the  lute»t  ruling*  in  both  countries.  With  an  App.-ndix,  giving  an  Analytical  view  of 
the  Knglish  and  American  onactmont«,  with  their  successive  alterations. 

"  I  have  lookwJ  into  it  with  a  good  tlcal  of  care.  ...  I  think  it  is  decidedly  the  best 
treatise  which  hnji  been  published  upon  those  bruncliiw  of  the  statute  of  which  it  speaks. 
And  It  U  these  cluusos  of  the  ntatuto  which  are  most  frequently  the  subjecta  of  dispute 
in  the  courU  of  justice.  The  IJench  and  the  Bar  will  Oiid  the  book  a  valuable  and  conven- 
ient one,  presenting  ns  it  docs  clearly  yet  concisely  all  of  the  decisions  of  the  Knglish 
and  American  courts  ujkmj  the  subject.  And  it  is  still  more  vuluablu  because  it  (.hows 
the  change*  which  have  been  made  In  different  Slates  by  hlututcs  ami  the  decisions  un- 
der them  in  tlio  respective  States."  —  Chiif  Ju$Ucc  Tanry,  U.  S.  Supreme  Court. 


PARSONS'S  LAWS  OF  BUSINESS. 

The  Laws  of  Business  for  Business  Men  in  all  the  States  of 
the  Union.  By  Tiikopiiilus  Pausoxs,  LL.  D.,  Professor  In  the  Law 
School  of  Harvard  University.     8vo.     Cloth,  82.50.     Sheep,  83.00. 

This  work  is  perfectly  trustworthy,  and  may  be  acted  upon  with  entire  safety.  It 
covers  the  whole  ground  and  extent  of  business,  and  gives  not  merely  rules  and  direc- 
tions, but  their  reasons  and  principles  plainly  and  fully. 

It  has  an  ample  collection  of  the  best  forms  for  all  mercantile  instruments,  deeds, 
leases,  wills,  &c.,  together  with  a  full  table  of  contents,  and  a  complete  and  exact  index. 

"  The  plan  of  Professor  Parsons  has  been  to  make  a  book  which  should  place  within 
the  apprehension  of  every  intelligent  trader,  and  of  every  young  man  who  proposes  to 
engage  in  any  department  of  business,  at  the  cost  of  no  more  time  than  evei-y  one  can 
conveniently  give  to  it,  a  useful  knowledge  of  all  the  elements,  or  general  rules  and 
principles  of  the  laws  of  business."  —  Boston  Post. 

"  The  work  is  a  manual  which  will  be  found  indispensable  to  the  merchant  and  trader, 
and  which  should  be  in  every  counting-house."  —  Boston  Journal. 

"  Ever}'  man  in  business  ought  to  know  something  of  the  law.  .  .  .  Professor  Par- 
sons's  book  meets  all  needed  requisitions.  It  is  of  moderate  compass;  the  style  has  the 
merits,  not  often  combined,  of  compactness  and  clearness ;  the  legal  propositions  are 
stated  with  entire  accuracy,  and  j'et  in  language  as  much  as  possible  divested  of  tech- 
nicality."—  Courier. 

"  It  should  be  placed  in  the  counting-room  of  everj-  young  business  man  for  constant 
reference.  With  its  aid  he  will  readily  find  an  answer  to  many  of  those  questions  about 
which  he  is  now  obliged  to  consult  his  seniors  in  business,  or  perhaps  his  lawyer,  or  else 
proceed  in  the  dark."  — Boston  Daily  Advertiser. 


STORY  ON  THE  CONSTITUTION. 

NEW   EDITION. 

Commentaries  on  the  Constitution  of  the  United  States  ;  with 
a  Preliminary  Review  of  the  Constitutional  History  of  the  Colonies  and 
States  before  the  Adoption  of  the  Constitution.  By  Hon.  Joseph  Story, 
LL.  D.     Third  Edition,  revised  and  enlarged.     2  vols.  8vo.     87.50. 

"  It  is  certainly  a  work  which  every  statesman  would  wish  to  read,  and  which  no  law- 
yer who  aspires  to  discuss  questions  of  constitutional  law  in  a  competent  manner,  should 
omit  from  his  Hbrary."  —  N.  Y.  Eve.  Post. 

"  The  work  is  an  indispensable  part  of  every  well-selected  law  librarj'."  —  St.  Louis  Re- 
publican. 

"  Nothing  more  than  a  simple  enunciation  of  a  new  edition  of  any  of  the  profound  and 
able  works  of  the  late  Justice  Story  is  required  at  the  hands  of  an  editor.  The  work 
of  eulogy  and  commendation  is  so  supei-fluous  as  to  excite  a  smile  at  the  thought  that 
so  great  a  jurist  required  the  aid  of  the  press.  The  demand  for  the  writings  of  Justice 
Story,  both  in  this  country  and  in  England,  has  increased  since  his  death.  New  edi_ 
tions  follow  new  editions  with  marvellous  rapidity,  but  the  demand  still  increases."  — 
Richmond  Examiner. 


STORY  ON   PARTNERSHIP. 

Commentaries  on  the  Law  of  Partnership  as  a  Brancli  of 
Cominen-ial  ami  Maritime  .Iiirisprudcnce,  with  Occasional  Illustrations 
from  till?  Civil  ami  Forcijrn  Law.  IJy  Hon.  Josktii  Stouy.  Fifth  Edi- 
tion, revised  and  enlarged  bv  E.  II.  1{i;n.\i:tt,  Escj.     8vo.     S5.50. 

STORY   ON   PROMISSORY  NOTES. 

>E\V    EUiriii.N. 

Commentarifs  on  the  Law  of  Promissory  Notes,  and  Cnaran- 
lies  of  Note.s  ami  Checks  on  Banks  and  Hankers,  with  Occasional  Illustra- 
tions from  the  Commercial  Law  of  the  Nations  of  Continental  Europe. 
lU"  Hon.  JosF.rii  Stouy.  Fifth  Edition,  revised  and  enlarged  by  F,. 
II.  I5K.NXKTT,  Es«i.     8vo.     S5.50. 


CRUISE  ON  REAL  PROPERTY. 
A  Digest  ol"  thi-  Law  of  Keal  I'ropcriy.  By  Wjlli.\M  Cruise. 
Sccoml  American  froni  the  fuurlh  London  Edition,  revised  and  enlarged, 
with  Xotc.K  and  Illustrations  from  the  Roman,  Civil,  an<l  Foreign  law.  and 
specially  adapted  to  the  American  Tractice,  by  Si.mon  CJiti;i;.Mj;AK,  LL.D. 
Second  edition.     3  vols.   8vo.     S1C.50. 

•♦  We  arc  dure  that  Mr.  Groonlcnf  could  have  performed  no  task  wliicli  wouhl  be  more 
gentrally  ncccptnblc  tliiin  tliU  verj'  one  of  winnowinf;  the  chalV  from  the  whcnt.  It  lins 
l>«en  pcrfonnt'd  in  n  manner  which  will  do  justice  to  his  eniiiiciit  rci)utation.  No  work 
which  haj«  ii|i|*cared  for  n  long  time  will  bo  more  valuable  to  students  or  to  the  profession 
gcDcmlly."  —  Law  JttporUr. 


GREENLEAF  ON  EVIDENCE. 
A  Treati.se  on  the  Law  of  IMdenee.     I>y  Hon.  Simon  Gueex- 

i.i:a»'.     Eighth  ediliun.  a  vols.  «vo.     :i<ll>. .'<»). 

•*  It  i»  no  rnenn  honor  to  America  that  licr  kcIiooIh  of  jurisprudence  iiave  produced  two 

of  lh«  flr»t  writcm  and  be«t  ciitceino<l  lepil  authoriticH  of  tliiH  century :  the  ;<reat  and 

p^^l  rrnri  (S!oryl.  wlio  liaa  ju»t  boon  taken  from  uit,  an<l  his  worthy  and  eminent  asso- 

'.<^f.     Ui>on  Iho  cxii>tinK  Law  of  Contractu  and  the  Law  of  Kvi- 

•hono  from  the  New  World  than  from  all  the  lawyern  who  adorn 

lt*«  cwuft*  i>r  Luro|Hi."  —  Ijondim  Jmw  Mat/aunt. 


AImj,  nuincrouH  ollur  valuable  mid  iinportaiit  Treatix's,  by  Ahhott, 
AXOKLL,  CUKTItt,  Ct'MIIINC,  fill. 1.1  \ltl>.  rAU.Hf)N.S,  StoHV.  UIkI  Others, 
—  lng«-llirr  with  nimieniiit  Series  <>['  K.-ports, —  :»ll  of  which  ;iif  fully 
di'i»«rib'd  ill  rmr  ('jii.-ilii'iif*,  whii-h  may  be  had  on  Mpplicali(.:i. 


THE 


LAW  OF   MORTGAGES, 


OF 


EEAL  AND  PERSONAL  PROPERTY. 


BEING    A    GENERAL 


YIEW  OF  THE  ENGLISH  AND  AMERICAN  LAW 
UPON    XHAT     SUBJECT. 


BY 


FRANCIS   MILLIARD, 

AL'THOK    OF    THE    AMEKICAX    LAW    OF    REAL   PKOPEKTT,    &C. 


"  The  case  of  mortgages  is  one  of  the  most  splendid  instances  in  the  history  of  our  jurisprudence 
of  the  triumph  of  equitable  principles  over  technical  rules,  and  of  the  homage  which  those  prin- 
ciples haye  received  by  their  adoption  in  the  Courts  of  Law. "-^Chancellor  Kent. 


SECOND    EDITION,    REVISED    AND    GREATLY    ENLARGED. 

IN   TWO    VOLUMES. 
VOL.   L 


BOSTON: 
LITTLE,    BROWN    AND    COMPANY 

1856. 


Kiitered  nccording  to. Act  of  Congress,  in  the  year  1S56, 

Br  Francis  HiLLiAno, 

in  the  Clerk's  Office  of  tlie  District  Court  of  the    District  of  JInssnchusclls. 


»3  56 


II I  V  I.  r.  hi  u  y. ,    <•  A  i\  t\  i:  i  i>  a  i.  : 

l-I.IMIIi     LV     It.    <l.     Hot  I, II  IDS    AM)    (llMI-AW. 


TO 

THE  HONORABLE 

RUFUS    CHOATE,— 

THE    PROFOUND    JURIST,    AND    ELOQUENT    ADVOCATE, 

DT    WHOSE    ENCOURAGEMENT    THE    AUTHOR    WAS    IN    PART    FIRST    INDUCED 
TO    INVESTIGATE    THE    INTRICATE    AND    COPIOUS    SUBJECT    OF 

THE   AMERICAN  LAW  OF   REAL   PROPERTY; 

THIS    WORK    IS    MOST    RESPECTFULLY 
DEDICATED. 


PREFACE 


TO   THE  FIKST  EDITION. 


There  are  few  titles  in  the  law  of  higher  importance 
in  the  United  States,  than  that  of  Mortgage.  With  the 
increase  and  extension  of  population,  intercourse,  and 
trade,  and  the  consequent  enlarged  connection  of  indi- 
viduals in  the  relation  of  creditor  and  debtor,  the  cases 
in  which  real  or  personal  estate  is  conditionally  transfer- 
red, as  security  for  debt,  become  indefinitely  multiplied. 
The  explanation  of  this  fact  is  found  in  the  consideration, 
that  both  creditor  and  debtor  generally  prefer  a  condi- 
tional to  an  absolute  transfer ;  the  former  because  he 
seeks  payment  of  his  .d^bt,  not  an  acquisition  of  prop- 
erty ;  and  the  latter,  because  he  may  thus  postpone  a 
pressing  claim,  and  at  the  same  time  avoid  a  sacrifice  of 
his  estate. 

Not  only  has  the  transaction  in  question  become  a 
VQxy  frequent  one,  but  the  relations  which  it  involves  or 
induces  are  peculiarly  various  and  complicated  ;  leading  to 
nice  and  difficult  questions,  which  constantly  require  an 
appeal  to  legal  tribunals  for  their  settlement.  An  abso- 
lute transfer  of  property  wholly  divests  the  grantor  of 
his  title,  and  vests  in  the  grantee  the  same  simple  and 


VI  PREFACE. 

uuqiuiliried  ownership.  But  u  mori(jage  confers  upon  the 
murtirairee  a  title,  and  at  the  same  time  leaves  a  title  in 
the  mortgagor.  The  relation  between  these  two  parties 
themselves  is  attended  with  many  obscure  incidents  and 
nice  distinctions  ;  and  when  either  party  transfers  his 
estate,  and  more  especially  when  such  alienation  occurs 
on  both  sides,  the  state  of  the  title  is  liable  to  become 
still  more  involved.  Accordingly,  it  will  be  found,  that 
there  is  no  subject,  upon  which  new  combinations  of  facts 
in  reference  to  one  or  both  of  the  parties  more  contin- 
ually arise  ;  calling  fur  novel  applications  of  old  prin- 
ciples, or  a  judicial  establishment  of  new  rules,  founded 
upon  analogy,  but  never  before  distinctly  propounded 
and  settled.  The  title  of  mortf/arje  is  rapidly  becoming 
one  of  the   most  copious  and  voluminous  in  the  law. 

It  is  the  aim  of  the  author,  in  the  following  work,  to 
embody  more  or  less  at  length  all  the  English  and  Amer- 
ican decisions  u[>(iii  the  subject,  together  with  the  statu- 
tory provisions  of  the  several  States.  The  plan  is  such 
as  to  make  the  book  equally  applicable  in  all  the  States 
of  the  Union. 

It  is  believed,  that  the  prescjut  work  is  the  first  attempt 
to  present  a  .systematic  view  of  the  Law  oi'  Jlor/f/at/cs  of 
Personal  Properli/.  Until  a  recent  }ieriod,  this  form  of 
mortgage  has  been  iiirici|iit'iil.  .ind  given  occasion  to  few 
questions  antj  decisions.  Without  the  security  allorded 
hy  rcf/i-s/ nil  ion,  \\\i\r\i  is  ;i  practice  now  very  generally 
adopted  in  the  I  iiiliij  States,  a  conditional  transfer  of 
chattels,  whi(di  allows  the  seller  to  remain  in  possession 
and  use  of  the  j»roj»erly,  lias  uiniouhtedly  liecn  found  to 
a  great   degree    impracticable  ;  leading  to    the    greatest 


PREFACE.  Vll 

confusion  and  uncertainty  of  title,  to  frauds  upon  credi- 
tors between  the  mortgagor  and  mortgagee,  and  also  to 
frauds  by  the  former  upon  the  latter,  where  the  mortgage 
itself  was  a  fair  and  honest  transaction.  The  recording 
system  has  afforded  a  remedy  for  these  evils ;  and  conse- 
quently the  mortgage  of  personal  property,  from  being  a 
rare  transaction,  is  becoming  one  of  almost  daily  occur- 
rence ;  and  the  conflicting  rights  of  the  parties,  and  more 
especially  of  third  persons  claiming  under  one  or  both  of 
them,  the  construction  of  statutes,  and  the  application  of 
the  principles  pertaining  to  mortgages  of  real  property, 
with  such  modifications  as  are  demanded  by  the  different 
nature  of  the  subject-matter,  give  rise  to  numerous  and 
continually  multiplying  questions  for  judicial  decision. 
A  large  space  in  the  present  work  is  occupied  with  this 
branch  of  the  general  subject. 

The  reader  will  notice,  and  the  severe  critic  may  do 
more  than  merely  notice,  that  the  present  work  is  enti- 
tled neither  a  Treatise,  nor  a  Digest,  nor  an  Abridgment  ; 
but  simply  The  Law  of  Mortgages.  The  plan  of  the  book 
is  threefold ;  first,  to  ari^nge  the  heads  or  topics  in 
natural  and  philosophical  order,  avoiding,  as  far  as  possi- 
ble, the  mixing  up  together  of  subjects  which  properly 
belong  apart,  or  the  separation  of  those  which  ought  to 
be  treated  in  connection ;  second,  facility  of  reference  to 
each  and  every  part  of  the  work,  by  means  of  this 
arrangement,  and  of  a  very  copious  index ;  and  third,  the 
incorporation  of  decided  cases,  including  the  facts  and 
the  opinions  of  judges,  to  such  an  extent,  as  to  supersede, 
in  a  great  measure,  the  necessity  of  reference  to  the 
original  reports  themselves.     The  plan  is  substantially 


Vlll  PREFACE. 

the  same  as  that  of  Mr.  Angell's  valuable  work  upon  the 
Lav)  of  Carriers.  It  also  resembles  that  of  Cruise's  Dir 
gest  of  the  Law  of  lical  JProperbj ;  and  may  ^voll  be 
descriltcd  in  ilie  language  of  the  preface  to  that  work. — 
'•A  systematic  distribution  is  framed  of  the  general 
principles  of  each  title,  supported  by  abridgments  of  the 
cases,  in  which  those  principles  have  been  established  or 
confirmed.  It  is  but  of  late  years  that  this  mode  of 
treating  legal  subjects  has  been  adopted.  Our  abridg- 
ments and  treatises  on  particular  titles  of  the  law, 
formerly  contained  little  more  than  a  collection  of  the 
adjudged  cases  that  had  been  determined  on  each  title, 
disposed  without  much  method,  and  witlunit  establishing 
or  deducing  any  general  principles." 

With  regard  to  that  particular  topic  of  the  law,  which 
con.stitutes  the  subject-matter  of  the  following  pages;  the 
work  relating  to  3Iort(/af/es,  which  has  been  chiefly  in  us§ 
lor  many  years,  can  hardly  be  said  to  fall  within  the 
category,  or  conform  very  closely  to  the  standard,  sug- 
gested l»y  Mr.  Cruise  in  the  passage  above  cited.  Mr. 
Coventry,  the  annotate »r  (if  P'on'oU  on  Mortijages,  remarks, 
concerning  that  very  learuiMl  treatise,  as  follows  :  ''  The 
author,  it  is  t<»  1)e  lamontcfl,  lias  not  followed  tliis  nor  any 
other  particular  divisiuii  in  the  ensuing  consideration  of 
the  estate  ami  interest  of  tlic  niorlgagcc.  Indcicd,  it  is 
sincerely  lo  In-  wislicd  1li;it  lie  IkmI  ;iil(iii(('(l  ;i  more  .suc- 
cinct arran<cement  of  his  work,  or  :ii  Icnsi.  thai  Im^  had 
intro<lu(;ed  .som<'  kind  of  sulidixi^ion  iido  cli.iiilcis  which 
«Mid)race  sut'h  an  extensive  v.iiirty  of  matter."  (I  Pow- 
ell, 171,  n.  A.)  And  Chancellor  Kent  (Connn.  J,  180, 
n.,)  makes  tlie  following  criticism  upon  the  same  work. 


PREFACE.  IX 

as  enlarged  by  the  copicfiis  annotations  of  its  English  and 
American  editors  :  "  The  American  editor,  Mr.  Rand,  has, 
with  a  thorough  accuracy^  collected  all  the  cases  and 
decisions  in  this  country  appertaining  to  the  subject. 
The  immense  body  of  English  learning*,  with  which  Mr. 
Coventry  has  enriched  every  part  of  the  original  work 
of  Powell,  is  not  only  uncommon,  but  very  extraordinary. 
There  never  were  two  editors  who  have  been  more  search- 
ing, and  complete,  and  gigantic  in  their  labors.  The 
work  has  become  a  mere  appendage  to  the  notes,  and  the 
large  collections  of  the  American  editor,  piled  upon  the 
vastly  more  voluminous  commentaries  of  the  English 
editor,  have  unitedly  overwhelmed  the  text,  and  rendered 
it  somewhat  difficult  for  the  reader  to .  know,  without 
considerable  attention,  upon  what  ground  he  stands." 

Without  making  pretensions  to  the  redundant  learning 
exhibited  in  the  text  and  notes  of  the  book  in  question, 
the  author  trusts  that  the  following  work  may  not  be 
found  wanting  in  the  all-important  qualities  of  system- 
atic arrangement,  and  accuracy  of  citations  and  refer- 
ences ;  and  that  it  may  in  some  good  degree  supply  the 
defect  which  has  long  existed  in  the  library  of  every 
American  lawyer. 

Boston,  December,  1852. 


CONTENTS. 


• 


CHAPTER  I. 

*  Page 

Definition'  of  a  Mortgage,  &c 1-26 

1.  Definition  of  a  mortgage.  Distinction  between  a  mortgage  and  the  vivum 
vadium,  &c. 

4.  AVhat  may  be  mortgaged. 

5.  Parties  to  a  mortgage  :  Aliens  ;  married  women  :  infants  ;  joint  tenants,  &c. 
24.  Early  construction  of  the  condition  of  a  mortgage ;  performance,  tender,  &c. 
34.  Form  of  expressing  the  condition  ;  stipulation  for  reconveyance,  &c. 

39.  Mortgages  for  years. 

40.  Jurisdiction  of  Courts  of  Equity  over  mortgages. 
4?.  Equity  of  redemption. 

CHAPTER  n. 
Defeasances 27-41 

1.  Nature  and  history  of  defeasances. 

6.  Deed  and  defeasance  must  be  concurrent ;  whether  the  date  of  both  must  be 
the  same. 

12.  Languat^e  of  a  defeasance. 

2-3.  Form,  and  moile  of  execntion,  of  a  defeasance;  whether  a  seal  is  necessary. 

24.  Defeasances  in  the  United  States. 

25.  Recording  of  defeasances. 

CHAPTER  IH. 
Pakol  Defeasances.  42-58 

Whether  a  mortgage  can  be  created  by  parol  agreement,  or  proved  by  parol 
evidence.  Doctrines  of  law  and  equity  upon  the  subject.  Practice  in  the  United 
States. 

CHAPTER  IV. 

Doctrine  of  Equity  in  the  Construction  of  the  Con- 
dition OF  A  Mortgage.  Restriction  upon  the  Right 
OF  Rkdemi'tion,  etc. 50-84 

1.  The  right  of  redemption  cannot  be  restricted. 

15.  Though  the  condition  is  contained  in  a  separate  defeasance. 


xii  CONTENTS. 

18.  Application  of  tlie  rule  to  collatenil  or  subsequent  negotiations  between  the 
jparties. 

21.  Not  applicable  in  case  oi family  settlemmts. 

23.  Exception  in  case  of  corporations. 

28.  Kelcase  of  the  equity  of  redemption,  or  cancelling  of  a  defciisanee  :  wlietlier    * 
valid. 

44.  Contract  to  pay  more  than  the  mortpjagc  debt  and  interest. 

51.  Subsequent  agreement  to  limit  tlie  time  of  redemjition.  • 

56.  The  mortgagor  has  the  benefit  of  any  new  ac(iui?itions  made  by  the  mort- 
gagee. 

60.  Case  of  Flnrjg  v.  Mann. 

62.  Conditional  assignment  of  a  mortgage. 

CHAPTER  V. 

Conditional  Salk,  as  distinguisiikd  i'kom  a  Mortgagk.  85-OC 

CHAPTER  VI. 

Pkrsonal  Liability  of  thk  Mohtgagor,  etc.  .         07-117 

1.  Personal  liability  of  the  mortgagor;  whether  necessary  to  constitute  a  mort- 
gage ;  whether  the  deed  itself  creates  such  liability,  &e. 

36.  Mortga;.'CS  for  supjiorl  ami  imiinttiianrc,  &c. 

48.  Cot) mint  or  conditi'm  fvr  payment  of  the  debt,  how  construed.  Covenants 
for  lillr  in  a  mortgage.  Mutual  relation  and  elleet  of  the  covenants  in  the  deed 
and  the  mortgage.     Estoppel,  liebutter,  &c. 

CHAPTER  VII. 
Powi.K  (.!■  Salk 118-133 

CHAPTER  VIII. 
Nature  of  the  Title  and  Estate  of  the  jMoktgagor.  134-158 

1.  The  mortgagor  remains  the  real  owner,  till  breach  of  condition,  entry  of  the 
mortgagee,  or  fcjreclosure. 

2.  Kemarks  of  judges  and  elementary  writers  ui)()n  this  subject. 

10.  Qualifications  of  the  general  rule;  how  far  the  mortgagee  may  be  (ailed 
ownt-r. 

I'J.  A  mortgage  is  not  an  dlienation  of  the  land,  or  revocation  of  a  devise. 

24.  Mortgagor  may  maintain  a  real  action,  as  owner. 

25.  And  gains  a  sitlhiin nt,  and  other  civil  privileges.. 
2'i.   His  |iossession  is  not  adrersr. 

3.'L  The  mortgagee,  in  general,  has  the  right  of  immediate  possession. 
.17.  When  he  has  not  this  right;  agreement  fur  the  possession  of  the  mortgagor, 
lujw  [iroved  ;  when  implied  ;  morl;,'a(,'cs  I'm-  .Mi[i|jurt,  &c. 

ciiArri:!:  i\. 

Nailuk  of  iiii:  .M<>im  i.  \<;(»i;'~,  I\ri  i;i  •^i,  w  mile  li;i  i'  in 

Po»8K»8ION l.'»'.)-205 

1 .   Whether  the  iiiorlj;ng<ir  in  u  Irmtnl,  rriiivr,  nijnit,  &.c.  • 

l.'l.  Hciiicdics  of  the  mortgagee  for  rent,  and  for  obluining  possession.  JSuticc 
to  i/'iii,  whether  neceHnarv. 

'M.   Dueirinc  in  the  Ignited  Stut<:». 


CONTENTS.  xm 

26.  Lease  by  the  mortgaj^or ;  respective  titles  of  mortgagee,  mortgagor,  and 
lessee ;  case  of  Keech  v.  Hall. 

63.  Distinction  between  leases  made  after,  and  before,  the  mortgage. 

69.  Joint  lease  by  mortgagor  and  mortgagee;  covenants  in  the  lease  of  a  mort- 
gagor, whether  assignable,  &c. 

79.  Liability  of  a  mortgagee  of  leascliold  upon  the  covenants ;  case  of  Eaton  v. 
Jacques. 

CHAPTER  X. 

"Waste  by  the  Mortgagor  or  Mortgagee,  and  Reme- 
dies THEREFOR 20G-214 

1.  The  mortgagor  cannot  commit  waste. 

2.  Remedy  by  injunction. 
6.  By  action  at  law. 

22.  Injuries  done  by  third  persons. 
26.  Waste  by  the  mortgagee. 

CHAPTER  XL  « 

Estate  of  the  Mortgagee.  Nature  of  his  Title. 
Connection  between  the  Mortgage  and  the  Per- 
sonal Security 215-259 

1.  A  mortgage  is  personal  estate.    The  mortgagee  has  a  mere  lien  or  pledge. 
5.  Transfer  of  mortgage  without  the  debt. 

10.  Assignment  of  the  debt ;  whether  it  passes  the  mortgage ;  doctrine  upon 
this  subject  in  the  several  States ;  mortgage  to  secure  several  debts,  some  of 
■which  are  transferred  ;  assignment  of  diiferent  debts  to  different  persons. 

41.  The  mortgagee  cannot  make  a  lease. 

43.  He  has  an  insurable  interest.  Rights  and  duties  of  parties  in  case  of  the 
insurance  of  mortgaged  property. 

50.  The  assignment  of  a  mortgage  is  the  assignment  of  an  estate,  not  a  mere 
security. 

52.  Case  of  Martin  v.  Mowlin,  and  criticisms  thereupon. 

56.  Joint  mortgagees  ;  their  interest  in  the  mortgage  and  the  personal  security. 
63.  A  mortgage  is  not  subject  to  legal  process. 
68.  Passes  as  personal  property,  upon  the  death  of  the  mortgagee. 
70.  By  what  words  devised. 

76.  Respective  titles  of  heir  and  executor ;  nature  of  the  interest  in  the'  executor's 
hands ;  sale  for  payment  of  debts,  &c. 

CHAPTER  XII. 

Estate  of  the  Mortgagee.  What  Claims  and  De- 
mands SHALL  BE  secured  BY  THE  MORTGAGE.     TaCK- 

iNG.     Future  Advances 260-297 

1.  Construction  of  the  condition  of  a  mortgage.  Ambiguity  of  description. 
Variance  between  the  mortgage  and  personal  security,  &c. 

1 1 .  Tackin<j. 

35.  Whether  adopted  in  the  United  States. 

53.  Future  or  subsequent  advances. 

VOL.    I.  b 


xiv  CONTEXTS. 


CHAPTER  XIII. 
Estate  of  the  MonTOACEE.     Successive  Mortgages 

OF    THE  same   PrOPEKTY.       RiGHTS   OF    PARTIES    COL- 
LATERALLY   INTERESTED   IX  THE  MORTGAGED    ESTATE    298-338 

1 .  Land  subject  to  mortgages  may  be  further  mortgaged.  General  rights  of 
subsequent  mortgagees  ;  wlien  tliey  become  entitled  to  jnioritj",  &c. 

20.  Assignment  of  a  prior  mortgage  to  a  subseciucnt  mortgagee  j  rights  of  such 
mortgagee,  upon  paying  tlie  first  mortgage. 

24.  Equitable  application  of  estates  subject  to  successive  mortgages. 

31.  Itiglits  of  parties  collaterally  liable  for  debts  secured  by  mortgage ;  sureties ; 
subsequent  mortgagees. 

4".  Mortgages  of  indemnity  to  sureties,  &c. 

57.  Transfer  of  different  estates,  subject  to  one  mortgage.  Equitable  appor- 
tionment of  the  mortgage  debt. 

CHAPTER  XIV. 

Fro.m  what  Fund  a  Mortgage  suall  be  paid,  upon 
THE  Death  of  the  Mortgagor      ....       339-357 

1.  General  nature  of  the  subject. 

2.  General  rules  as  to  tlie  fund  for  payment  of  a  mortgage. 
7.  iJecided  cases. 

33.  Miscellaneous  points  and  decisions. 

CHAPTER  XV. 

Equity  of  Redemption    .         .  ....       358-416 

I.  Definition  and  nature  of  an  equity  of  redemption. 

3.  Distinction  between  an  equity  of  redemption  and  a  trust. 

13.  Who  may  redeem  a  mortgage. 

25.  Against  wliom  redemption  may  be  claimed. 

28.  Kedcniption  in  case  of  the  dcatli  of  tlie  mortgagor. 

31.  Kcdcinption  l>y  a  party  iiaving  a  j)artial  interest  in  the  property  ;  claim  for 
reimbur^cmciit. 

37.  An  equity  of  redemption  is  assets. 

38.  And  liable  to  legal  process. 

42.  Hut  it  is  not  thus  liable,  in  a  .^uit  upon  the  mortgage  debt ;  cases  and  dis- 
tinctions upon  this  subject. 

56.  Whether  the  indorsee  of  a  mortgage  note  may  levy  upon  the  equity  of  re- 
demption. 

CO.   Ciiittsi/  in  an  equity  of  redemption. 

Gl.  Wlntber  subjict  to  dower :  i;ii;:lis!i  and  American  law  iq)on  this  subject. 

•<>«.  <  >n  what  terms  the  widow  may  redeem. 

CIIAI'TKK    W'F. 

J'^QllTV  OI    liLl>I..Ml'TU>.\.      TlK.MS  nl    lil.U  ll.Mrili  "V.      Ar- 
(■OLNT    OF    A    Mo|{T<;aGKE    L\    POSSESSION.       ill-     I-IA- 

uiLrrv  FOR  Rents,  ani>  Clalm  for  Expendfh  ke.s         117-1  1G 

I.  Tlie  mortgagcu  is  liable  to  account,  a-*  a  •.i,,,-,,,.!  <.r  l..nli(/';  extent  of  his  lia- 
l»ility. 


CONTENTS.  XV 

18.  Mode  of  computing  interest ;  whether  tlie  mortgagee  is  chargeable  -with  in- 
terest ;  annual  rests. 
27.  What  provisions  in  a  mortgage  will  bind  the  party  to  pay  interest. 
31.  Interest,  in  case  of  a  particular  tenant  and  reversioner. 
37.  For  what  repairs  and  other  expenditures  the  mortgagee  shall  be  allowed. 
56.  Sale  of  a  part  of  the  mortgaged  property  ;  proceeds  ^o  be  accounted  for. 
59.  Accounting  for  rents,  &c.,  to  subsequent  mortgagees,  creditors,  assignees,  &c. 
64.  Receivers. 
76.  Parties  in  case  of  a  decree  to  account  for  rents,  &c. 


CHAPTER  XYIL 

EXTINGUISHMEXT    OF    A    MORTGAGE,    BY    PAYMENT,   RE- 
LEASE, ETC 447-492 

1.  In  general,  payment  of  the  debt  pays  the  mortgage  also. 

2.  Payment  after  breach  of  condition  ;  ivaiver  as  to  time.  Changing  the  security 
for  a  debt  does  not  extinguish  the  mortgage.     New  notes,  &c. 

13.  Effect  upon  the  mortgage  of  legal  and  judicial  proceedings,  either  between 
the  parties,  or  in  connection  with  strangers. 

18.  Of  making  the  mortgagor  the  executor,  &c.,  of  the  mortgagee. 

20.  Whether  a  deposit  shall  be  treated  as  payment.  • 

22.  Surrender  of  the  note  for  a  release  of  the  right  of  redemption ;  whether 
payment. 

24.  Exceptions  and  qualifications  to  the  rule  above  stated.  Extinguishment  of 
a  mortgage  without  direct  payment ;  by  renewal  of  notes,  appointment  of  execu- 
tors, legal  proceedings,  &c. 

38.  Application  or  appropriation  of  payments  ;  mutual  claims  and  offsets. 

46.  Presumptions  and  circumstantial  evidence  as  to  pavment.     Parol  evidence. 

52.  The  effect  of  payment  upon  the  titles  of  the  respective  parties  and  their 
remedies. 

61.  Extinguishment  of  a  mortgage,  by  a  transfer  of  the  land  to  the  mortgagee. 

75.  Release  or  discharge  of  a  mortgage.     Discharge  upon  the  record. 

84,  When  a  release  may  be  avoided. 


CHAPTER  XVin. 
Assignment  of  a  Mortgage 493-538 

1.  What  constitutes  an  assignment,  and  what  a  discharge,  of  a  mort"-a"e. 

24.  Mortgage  of  indemnity ;  when  the  law  implies  an  assignment  of^'sul.-h  mort- 
gage. 

27.  Conditional  assignment  of  a  mortgage,  whether  itself  a  mortga<»e. 

33.  Form  of  assignment.  "^ 

35.  What  passes  by  an  assignment ;  whether  a  mortgagee,  after  assignment, 
can  release  or  bring  an  action. 

46.  Whether  he  shall  l)e  party  to  a  suit  for  redemption  or  foreclosore. 

48.  Consideration  paid  by  the  assignee,  whether  material. 

49.  For  what  amount  the  mortgagor  is  liable  to  the  assignee.  Whether  the 
latter  is  bound  by  previous  payments,  set-offs,  &c. 

57.  Guaranty  by  the  mortgagee. 

59.  Effect  of  the  mortgagor's  Joining  in  the  assignment. 

62.  Recording  of  an  assignment.  How  far  an  assignee's  title  may  be  affected 
by  fraud  or  notice. 


Xvi  CONTENTS. 

CHAPTER  XIX. 

Void  and  Voidarle  Mortgages.     Usury       .         .        539-500 

1    General  principle  as  to  avoiding  deeds. 

2.  Usury. 

3.  What  constitates  usury  in  a  mortgage. 
14.  What  does  not  constitute  usury. 

22.  Statement  of  questions  arising  in  relation  to  usurious  mortgages. 

24.  When  the  sum  legally  due  may  be  recovered. 

25.  Distinction  between  a  bill  for  foreclosure,  and  a  bill  to  redeem,  in  relation 
to  usury. 

28.  What  parties  may  be  aflfeeted  by  usury  in  a  mortgage. 
31.  What  parties  may  avail  themselves  of  such  usury. 

3S.  What  will  preclude  a  mortgagor  from  setting  up  usury;  effect  of  a  prior 
judgment,  &c. 

44.  Form  of  pleading  usury. 
46.  Evidence  —  parol  evidence. 

CHAPTER  XX. 

Void  and  Voidable  Mortgages.     Want  or  Failtjre 

OF  Consideration.     Illeoal  Consideration        .       561-570 

I.  Want  of  consideration;  as  between  the  parties,  and  in  relation  to  cred- 
itors, &c. 

10.  W:mt  or  failure  of  consideration,  consisting  in  a  defect  of  title. 

CHAPTER  XXI. 

Void  and  Voidable  Mortgages.  Fraud  between 
THE  Parties  and  in  Relation  to  Creditors.  Fraud 
ON  Tin:  Part  of  a  Mortgagee;  Effect  upon  sub- 
sequent Incumbrancers 571-598 

1.  Fraud  between  the  parties. 
5..  Fraud  as  to  cre<litor.s,  &c. 

I I .  Fraudulent  concealuient  or  misrepresentation  of  title  by  a  mortgagee ;  effect 
upon  (iubscipient  incumbrances  ;  attestation  l>y  him  of  a  subsetiueut  deed  ;  dcliv- 
cry  of  title-deeds  to  the  mortgagor,  &c. 

34.  liiniitations  and  restrictions  of  tlie  rule  above  stated. 
44.  Mortgage  from  client  to  attorney. 

CHAPTKK   XX 11. 
Eqi  itable  Mortgage.     Deposit  oi  Title-Deeds  599-612 

1.  Kquitaltle  licnfi. 

.'1.   I )u[»oHit  of  deedi ;  ronslilutf'S  n  mortgage. 
I.   F-tablishmcnt  of  the  doctrine  ;  case  of  Russil  v.  /iiissil. 

f,.  tiualifi<iiiion»  and  critici.sms  of  the  rule  ;  remnrks  of  judges  and  elementary 
writirra. 

11.  DeriHionH,  cutnblidhing  tlie  doctrim-. 
•Tl.  American  do<trinc. 

3?.  I'ATiri  upon  the  title  <yf  a  mortgagee,  of  fl-aving  the  deeds  in  the  liands  of 
the  mortgagor,  and  u  dejiosit  by  him. 


CONTENTS.  XVU 


CHAPTER  XXIII. 

Equitable  Mortgages.     Lien  of  a  Vendor  for  the 

Purchase-Money  613-658 

• 

I.  General  nature  of  the  lien. 

3.  Ecmarks  upon  the  policy  of  the  rule  ;  whether  it  is  consistent  with  the  gen- 
eral doctrines  relating  to  real  property. 

7.  The  doctrine  is  well  settled  by  the  weight  of  authorities. 

II.  Strictures  and  criticisms  of  the  American  courts.    The  rule  is  not  adopted 
in  some  of  the  States. 

16.  But  it  is  adopted  in  most  of  them. 

17.  Abstract  of  decisions  upon  the  subject. 

19.  General  nature  of  the  lien  ;  an  equitable  right. 

30.  Against  what  parties  the  lien  may  be  enforced.     Purchasers  ;  by  what  no- 
tice they  shall  be  affected. 

43.  Heirs. 

44.  Widow. 
47.  Creditors. 

56.  By  whom  the  lien  may  be  enforced. 

59.    Waivir  and  discharge  of  the  lien  of  a  vendor  for  the  purchase-money,  by 
taking  security  therefor,  or  by  other  acts  and  agreements. 
84.  Mode  of  enforcing  the  vendor's  lien  ;  bill,  decree,  &c. 

CHAPTER  XXIV. 

Equitable  Mortgages.     Lien  of  a  Vendee  for  the 

Purchase-Money  ......       659-662 

CHAPTER  XXV. 

Registration  of  Mortgages    .         .        .        .        .       663-676 

1.  General  requisition  of  registration  in  tlie  United  States. 

3.  Not  necessary  between  the  parties.  &c. 

4.  Operation  of  an  unrecorded  mortgage,  as  against  other  incumbrances. 
6.  Registration,  how  far  notice. 

12.  Not  necessary,  as  ag^^^arties  having  notice  ;  what  shall  constitute  such 
notice. 


INDEX  TO  CASES  CITED. 


A. 

Page 

Page 

Ash  V.  Ash 

665 

Abbe  V.  Goodwin 

448 

Asht(A  V.  Dalton 

607,  608 

V.  Newton 

563 

Aston  V.  Aston 

428 

Abbott  V.  Godfrey 

613 

Astor  V.  Hoyt 

201,  449 

V.  Upham 

158 

V.  Miller 

201, 449 

Aborn  v.  Burnett 

54 

V.  Turner 

441 

Ackla  V.  Ackla 

473 

586 

Atkins  V.  Sawyer 

378 

Adams  v.  Barnes 

558 

Atkinson  v.  Maling 

286 

V.  Brown 

420, 

436 

Attorney-General  v.  Bowyer         255 

V.  McKenzie 

76 

V.  Scoti 

391 

Addison  v.  Crow 

298 

V.  Winstanley  136 

^tna,  &c.  V.  Tyler 

659 

Atwood  V.  Vincent 

618, 623 

Aiken  v.  Morris 

572 

Augur  V.  Winslow 

448 

V.  Skilburn 

240 

Austen  v.  Halsey 

624 

Albany,  &c.  v.  Bay 

126 

143 

Austin  V.  Austin 

111 

Albany's  case 

30 

V.  Bradley 

76 

Aldridge  v.  Dunn 

639 

648 

V.  Downer 

319 

V.  Weems 

517 

Averill  v.  Guthrie 

585 

V.  Westbrook 

501 

V.  Loucks 

12 

Aldworth  V.  Robinson 

265 

Aymar  v.  Bill 

219 

Alexander  v.  Heriot 

615 

Ayres  v.  Husted 

308,  309 

Alford  V.  Helms 

638 

658 

Allen  V.  Clark 

326 

334 

B. 

V.  McRae 

54 

V.  Parker 

149 

Babcock  v.  Kennedy 

180 

AUenby  v.  Dalton 

98 

Bacon  v.  Bowdoin 

175,  366 

Ammerman  v.  Jennings 

637 

V.  Brown 

b<o,  86,  98 

Ancaster  v.  Mayer 

98 

345 

Badham  v.  Cox 

643 

Anderson  v.  Davies 

264 

Bagot  V.  Oughton 

345 

V.  Neff 

270 

447 

Bailey  v.  Gould 

217 

Andrews  v.  Burns 

663 

V.  Lincoln,  &e.  " 

561 

V.  Wolcott 

113 

328 

V.  Murphy 

543 

Anthony  v.  Smith 

650 

V.  Richardson 

499 

Appleton  V.  Boyd 

246 

Baine  v.  Williams 

308 

Armitage  v.  Wickliffe 

449 

Baker  v.  Thrasher 

94 

Arnold  v.  Foot 

436 

Baldwin  v.  Jenkins      18, 

19,  32,  383 

V.  Mattison 

58 

572 

V.  Norton 

459,  554 

Arnot  V.  Post 

16 

Ballard  v.  Carter 

253 

Asay  V.  Hoover 

255 

359 

Ballinger  i'.  Edwards 

547,  548 

xx 


INDEX   TO    CASES    CITED. 


Bank  r.  Herbert 

6G6 

V.  Mitthell 

308 

.  v.  Willard 

289 

Bank,  &c.  v.  Carpenter 
V.  Christie 

o62 

G64 
296 

f.  Finch  277 

287 

,288 

,449 

V.  :Mott 

672 
212 

^           V.  Peter 

806 

^^           {'.  Rose 

420 

450 

r.  Sprigg 
V.  Tarletou 

219, 

232, 

42 
233, 
460 

Bank  of  Westainstcr  v 

Whyte 

57, 

2G1 

363 

Banks  i'.  Sutton 

391 

r.  Walker 

566 

V.  Waller 

• 

569 

Banta  v.  (iarmo 

502 

Barber  i;.  Cary 

308 

Bard  c.  Fort 

558 

Barham  v.  Karl,  &c. 

516 

V.  Thauet 

355 

Baring  v.  Moore 

333 

Barker  r.  Parker 

499 

r.  Smark 

656 

Barnard  v.  Eaton 

11 

211 

389 

V.  Pope 
Barnes  v.  Camack 

488 

578 
490 

V.  Lee 

517 

r.  Morris 

311 

V.  Ivacster 

310 

Barnttt  f.  Weston 

269 

Barney  v.  Adams 

194 

Barnitz  c  Smith 

643 

Barr  r.  Kinard 

672 

Barra<jue  v.  iMauncl 

519 

Bassett  c.  Bassett 

37 

Baxter  v.  Willey 

55,  94 

Baylies  v.  Biissey 

487 

Bavlt'V  r.  (Jreeidcaf 

(Jia 

G28 

640 

Belill  V.  Barclay 

32Q 

581 

595 

Beamish  r.  'I'iie  Overseers, 

&c. 

147 

Bean  v.  Mayo 

153 

Ko^re  r.  I'rior 

418 

Beattoii,  ^ic. 

384 

Beck  V.  M.(;illi.s 

255 

Beckett  r.  Cordloy 

577 

1'.  Snow 

;I17 

Ik'ckley  I'.  Miniwxi 

19 

Beekman  r.  l-'rost 

'285 

Becley  v.  Wallace 

173 

Beers  v.  Ilawley 

667 

Bciii  >'.  Heath 

6 

Hcirnc  i;.  Campbell 

635 

Page 

Belchior  r.  Collins  175 

Beldiiig  r.  Manly  226,  227 

Bell  V.  Hamniond  359 

r.  Mayor,  cScc.  420,  430 

V.  i\Iorse  223 

Benbow  v.  Townsend  45 

Bend  v.  Su!:i[uchannah  57 

Bennett  v.  Butterworth  419 

V.  Holt  87 
r.  Union                19,33,118 

Bennock  v.  Whipple  34 

Bentham  v.  Haincourt  428 

Bentley  v.  Phelps  56 

Benzein  v.  Lenoir  361 

Bergen  v.  Bonn«tt  131,*132 

Bergcr  v.  Hioster  468 

Berney  v.  Sewell  444 

Berry  v.  IVIutual,  &c.  610 

Berrysford  v.  Millward  584 

Besley  v.  Lawrence  325 

Best  v.  Carter       ^  19 

V.  Schermier*  441 

Betton  V.  Williams  652 

Bevaut  v.  Pope  17 

Bibb  t-.  Williams  665 

Bickfbrd  r.  Daniels  53 

Bigolow  ('.  ToplifF  55 

Billiiighiirst  v.  Walker  349 

Birch  r.  Wright  159,164 

Bird  u.  Gardner  4U0 

Bishop  V.  Warner  563 

Black  V.  Morse  326 

Blackburn  v.  Pennington  662 

V.  Warwick  425 

Blackwcll  c.  Overby  54 

Blair  v.  Bass  54,  231 

Blair's  case  258 

Blakemore  v.  Byrnsidc  57,  96 

IMaiichard  v.  C(jli)urn  247 

V.  Kenton  16 

Blaney  v.  Pearcc  158 

liloodgood  V.  Zcily  67 

Blount  )-.  Hipkins  354 

Blvdenburgh  c.  Cothoal  543 

Bl'yer  r.  M<jnholl;iM.l  828 

Boarman  r.  C'atlett  864 

Bobbitt  I'.  Flowers  •  453 

Boflen's  estate  251 
Bodwell  r.  Webster     29,  35,  48,  105 

Boisgeninl  i".  Poor  13 
Bolles  f.  Chauniy           1  l.s,  ■\:>u,  65H 

c.  Wa.le  611 

Bolton  V.  Bailanl  890,  401 

Bonhain  r.  (I.ilioway  4(12 

I'.  NewcomI)  6H,  69 


INDEX   TO    CASES   CITED. 


XXI 


Page 

Page 

Bonithon  v.  Hockmore 

419 

Brown  v.  Leach 

149, 154 

Booker  v.  Gregory 

424 

V.  Markham 

78 

Boon  V.  Barnes 

63: 

!,  634 

V.  Nickle 

32 

Booth  V.  Barnum 

286 

V.  Sewell 

448 

Borst  V.  Boyd 

359 

V.  Staples 

113 

Boston,  &c.  V.  King 

214 

V.  Stead 

302 

Boston  Iron  Co.  v.  King  425, 436,  409 

V.  Stewart 

149,  207 

Bottomly  v.  Lord  Fairfax 

392 

V.  Story 

181 

JBottorf  V.  Conner 

627 

V.  Vanlier 

633 

Bourne  v.  Littlefield 

427 

V.  Worcester,  &c. 

372 

Bower  v.  Crane 

173 

V.  Wright 

57,  277 

Bowes  V.  Seager 

534 

Brumfield  v.  Palmer 

636 

Bowker  v.  Bull 

312 

Brundige  v.  Poor 

6 

Boyd  V.  Stone 

48 

Bryan  v.  Cowert 

29,  30,  58 

Boylston  v.  Carver 

256 

Buck  V.  Livingston 

342 

Bozon  V.  Williams 

608 

V.  Sherman 

383 

Brace  v.  Duchess,  &c. 

266 

Budeley  v.  Massey 

21 

Bradford  v.  Marvin 

644 

Buell  V.  Tate 

114 

V.  Potts 

569 

Bulkley  v.  Chapman 

228 

Bradley  v.  Snyder 

77 

,434 

BuUard  v.  Bowers 

415 

Braman  v.  Wilkinson 

672 

Bumgardner  v.  Allen 

107 

Branch,  &c.  v.  Fry 

186 

Bumpus  V.  Dotson 

263 

Branch  Bank  v.  Furness 

366 

V.  Plattner 

565 

Bragg  V.  N.  E.  &c. 

144 

Burchard  v.  Phillips 

299 

Brainerd  v.  Brainerd 

56 

Burdett  v.  Clay 

232,  449 

Bratton,  &c. 

384 

,  665 

Burgess  v.  Sturgis 

657 

Brawley  v.  Catron 

629 

V.  Wheat 

358,  623 

Breckenridge  v.  Auld 

28 

Burnett  v.  Deniston 

130,  131 

V.  Brooks 

419 

V.  Dennison 

277 

V.  Ormsby 

479 

V.  Pratt 

246 

Brewer  v.  Staples 

318 

Burns  v.  Hobbs 

572 

Brick  V.  Getsinger 

207 

V.  Taylor             614 

,  625,  637 

Briggs  V.  French 

571 

Burton  v.  Baxter 

231 

V.  Hill 

651 

V.  Pressly 

449 

V.  Sholes              547, 

556 

557 

V.  Slattery 

78 

Brinkerhoff  v.  Lansing 

451 

577 

V.  Wheeler 

312 

V.  Yansciver 

625 

Bush  V.  Livingston 

542 

Brisbane  v.  Stoughton 

119 

Bussey  v.  Page 

211 

Briscoe  v.  Bronaugh 

632 

Buswell  V.  Davis 

449,  681 

V.  King 

112 

Butler  V.  Butler 

350 

Bristoe  v.  Knipe 

112 

V.  ElHott 

309 

Bristol  V.  Hungerford 

266 

V.  Paige 

161 

Britton  v.  Updike 

326 

Butt  V.  Bondurant 

550 

Brizick  t'.  Manners 

608 

Brooke  v.  Warwick 

356 

Brooks  V.  Avery 

544 

C. 

V.  Harwood 

412 

Broome  v.  Beers 

580 

Cadwallader  v.  Mason 

137 

Brown  v.  Beers 

580 

Calkins  v.  Calkins 

216 

V.  Blydenburgh 

518 

V.  Munsoll 

373 

V.  Cole 

448 

Callum  V.  Branch,  &c. 

311 

V.  Cram              140, 

141, 

163 

Cameron  v.  Irwin     74,  130, 

163,447 

V.  Dewey 

52 

Campbel  v.  Knights 

494 

V.  East 

661 

Campbell  v.  Baldwin      634, 

647,  648 

V.  Lapham         412, 

501, 

502 

V.  Low 

9 

xxu 


INDEX    TO    CASES    CITED. 


Campbell  r.  Matomb 

r.  Worthington 
Carcw  r.  Johnston 
Carey  r.  Rawson 
Car|)en  c.  Providence 
Carradino  r.  O'Connor 
Carris  r.  MoClary 
Carter  v.  Bennett 
V.  Carter 
f.  Dennison 
V.  Roikett 
Casborne  v.  In<_disb 

V.  Scarte 
Casey  i:  Ruttolph 
Cass  c.  Martin 
Cassidy  r.  Rhodes 
Castlenian  i".  Belt 
Catheart's  Appeal 
Cator  c.  Charlton 
Cavis  V.  McClary 
Center  r.  P.  and  M.  Bank 
Chadbourne  v.  RacklitF 
Chamberlain  c.  Thompson 
Chambers  v.  Goldwin 

r.  llise 

r.  .Manldin 
Champlin  r.  AVilliams 
Chapman  c.  Armistead 

V.  Beechara 

V.  Chapman 

V.  llujihcs 

r.  Mull 

r.  Smith 

V.  Tanner 

v.  Turner 
Charles  v.  Clai/ctL 
V.  Dunbar 
Charter  r.  Stevens 
Chase  r.  M'Donald 

V.  Palmer 
Chcllis  v.  Stearns 
Clurry  r.  Monro 
Chester  v.  (Jreer 

V.  Whcelwri^^ht 
Chewning  v.  Pro<!tor 
Chilion  V.  Chapman 
Cholmondeley  v.  Clinton 

(^'howninp  v.  Cox 
('hri.«(toplu'n(  r.  Sjiark 
Cliunh  V.  S:i\a>'ii 
♦  icdlto  I'.  (»aj»iiinr 
(:i;ib.iii;4li  r.  Hyerly  577,688, 
Cla^ttlt  v.  Salmon 
(JiaiUjrnu  i'.  Crockett 


Page 

Page 

207 

Clarendon  v.  Barham 

356 

55 

Clark  V.  Beach 

'228, 

229 

443, 

527 

1-.  Bell 

657 

33 

r.  Bull 

285 

235 

t".  Flint 

527 

128 

V.  Henry 

83 

180, 

182 

c.  Ridjjley 

441 

233 

V.  Smith       220,  431, 

433, 

436, 

58 

437 

550 

Clarke  t'.  Curtis 

137 

441 

255 

V.  Sibley 

360 

364 

18 

V.  Stanley 

305 

13i) 

142 

Clay  V.  Willis 

119 

50G 

Clinton  r.  Hooper 

8 

412 

dough  r.  Elliott 

407 

103 

Clower  V.  Rawlings        618 

,647 

655 

170 

188 

Clowes  V.  Dickenson 

326 

303 

Coates  I'.  Cheevcr 

501 

273 

V.  ^^'ood^vo^th 

57 

182 

Coker  v.  Pearsall 

188 

233 

672 

Colcord  V.  Seamonds 

655 

50C 

Coleman  v.  BaVik,  &c. 

665 

141 

281 

Coles  V.  Coles 

396 

77 

^           V.  Perry 

19,86 

85 

Collett  r.  Munden 

273 

301 

Collins  V.  Carlile 

287 

327 

Colquhoun  v.  Atkinson 

277 

173 

Cohpiitt  V.  Thomas 

628 

168 

Colton  V.  Smith 

13 

601 

Columbia  v.  Lawrence 

235 

58 

Colwell  V.  Woods 

32 

360 

('olman  v.  Packard 

151 

422 

Commercial,  tScc.  v.  Cunnin, 

;ham 

286 

623 

Comstock  V.  Stewart 

19 

1,22 

Conger  v.  Lancaster 

105 

18 

359 

Conner  v.  Banks 

660 

661 

300 

439 

Conovcr  r.  Mutual,  ^cc. 

144 

235 

130 

Conrad  r.  Atlantic,  &c. 

286 

282 

284 

r.  Harrison 

338 

137 

Contributors  v.  Gibson 

448 

151 

Converse  v.  Cook 

241 

514 

340 

Conway  r.  Alexander 

86 

5')  2 

593 

t'.  Decrlield 

117 

2(J2 

471 

Cook  V.  Colyer 

571 

106 

V.  Hinsdale 

521 

324 

Coombs  V.  .Ionian 

282 

I'tO, 

165, 

V.  ^Varrcn 

147 

417 

Cooper  V.  Davis 

209 

210 

18 

859 

V.  IJImann 

231 

135 

r.  Whltm^v 

20 

S4i 

Copeland  ;•.  Copcland 

(i(;8, 

670 

528 

Copis  r.  Middlclon 

311, 

;t  1  3 

,5y3 

,594 

Coppin  V.  Coppin 

(123 

487 

Conlcr  V.  Morgan 

1  21 

C51 

Cornell  r.  Preaeott 

33  1 

INDEX   TO    CASES   CITED. 


XX  111 


Page 

CorninfT  v.  Murray 

667 

Cotterell  v.  Long 

18 

V.  Purchase 

27,  28,  73 

Cottington  v.  Fletcher 

47 

Courtney  v.  Scott 

66 

V.  Taylor 

99 

Coutant  V.  Servoss 

132 

Cowan  V.  Green 

665 

Craft  i:  Billiard 

57 

V.  Webster 

535 

Crafts  V.  A  spin-wall 

658 

Craig  V.  Tappin 

285 

Crane  v.  Caldwell 

645 

V.  Dewing 

291 

V.  March 

387 

I'.  Palmer 

638 

Crawford  v.  Boyer 

299 

CuUum  V.  Branch,  &c. 

451 

V.  Emanuel 

484 

V.  Erwin 

233 

301 

Camming  v.  Gumming 

326 

V.  "Williamson- 

245 

Cunningham  v.  Davis 

549 

Curtis  V.  Lyman 

669 

V.  Tripp 

580 

Gushing  V.  Ayer 

326 

329 

Cutler  V.  Haven 

223 

V.  Lincoln 

5,476 

501 

Cults  V.  York 

520 

D. 


Dale  V.  Shirley  301 

Danforth  v.  Smith  409,  410 

Darling  v.  Chapman  16,  149 

Davenport  v.  Bartlett  34,  13  7 

Davidson  v.  Beard  665 

Davis  V.  Anderson  136 

V.  Battine  455 

V.  Clay  613 

V.  Fargo  470 

V.  Maynard  455 

V.  I^Iilis  319 

V.  Thomas  91 

Day  V.  Clark  671 

Dean  v.  De  Lezardi  668 

Dearborn  v.  Dearborn  155 

Dearing  v.  Lightfoot  671 

V.  Watkins  671 

Deaver  v.  Parker  379 

De  Butts  c.  Bacon  542 

De  Forest  r.  Hough  457 

Deibler  r.  Barwick  652 

Delahay  v.  ISIc  Council  57 


Demarest  v.  Winkoop 
Deming  r.  Comings 
Den  V.  Dimon 

V.  Spinning 
Denton  v.  Nanny 
Dcstrehan  v.  Scudder 
Dewey  v.  Bulkley 
Dexter  v.  Arnold 
V.  Phillips 
Dey  V.  Dunham 
Dick  V.  Balch 
V.  Maury 
Dickenson  v.  Jackson 
Digby  V.  Craggs 
Dixie  V.  Davis 
Dobson  V.  Land 
Dockray  v.  Noble 
Doe  V.  Barton 

V.  Bucknell 

V.  Cadwallader 

V.  Clifton 

t'.  Cox 

V.  Day 

V.  Giles 

V.  Goldsmith 

V.  Goldwin 

V.  Goodier 

V.  Hales 

V.  Lawrence 

V.  Lewis 

V.  Lightfoot 

V.  Maisey 

V.  McLoskey 

V.  Olley 

V.  Simpson 

V.  Stone 

V.  Tom 

V.  Warburton 

V.  Williams 
Donley  v.  Hays 
Donnels  v.  Edwards 
Dorkrey  v.  Noble 
Dorr  r.  Peters 
Doton  v.  Russell 
Dougherty  i:  McColgan 

Douglass  V.  Peele 
Downer  v.  Fox 
Doyle  V.  White 
Driver  v.  Clark 

V.  Hudspeth 
Dryden  v.  Frost 
Dudley  r.  Cadwell 
Duncan  i'.  Drury 
Dunham  v.  Dey 


472,  474,  538 
145,  220, 520 
475 
397,  399 
119 
574 
249,  418,  432 
173 
40 
669 
232 
179 
528 
168 
437 
225 
160, 190 
177,184 
184 
190 
168 
156,  170 
161 
194 
156 
185 
180 
196 
180 
157 
165 
145 
184 
180,  181 
190 
169 
183 
160 
230 
246 
496 
106 
477 
7,  86,  430, 
432 
666 
307 
263 
656 
658 
675 
117 
570 
668 


X  X I V 


INDKX    TO    CASES    CITED. 


Pace 

Dunn  V.  (Irant  661  I 

Dunshee  r.  I'anneleo'  424,  450 

Durham  c.  Aklen  583 

Duvall  c.  Bibb  632,  647 

DwiMrht  r.  Newell  642 

D/er  V.  Lincoln  559 

V.  Morton  632 

Dyson  t*.  ilorris  24(? 


E. 


Eagle  V.  Pell  438 

Earl  of  Belvedere  v.  Rochford      347 

Eastman  v.  Foster  321 

Eaton  V.  Green              .  87,  95 

r.  Jaques  200,201,203 

V.  Simonds  399,  404,411,419, 

494 

V.  Whiting  248 

Eddlestone  r.  Collins  6 

Edmonds  v.  Crenshaw  286 

I".  Povcy  268 

Edrington  r.  Harper  86 

Edwartls  r.  Bodine  568 

r.  Ferguson  104 

V.  Jones  195 

V.  ^'arit•k  2 1  7 

Elder  j>.  Kouse  103 

Ellieott  r.  United  States,  &c.         442 

Elliott  V.  Maxwell  54 

V.  Patton  365,  370 

EUifl  t;.  Guavas  256 

r.  Higgins  49 

r.  Messervic  597 

Ellison  r.  Daniels  145,  224 

Ellsworth  i:  Mitchell  301,  558 

Elwys  V.  Thompson  372 

Emerson  t;.  Thompson  173 

J^mcry  v.  Owings  261 

Endsworth  i:  Grillith  72 

Engle  I'.  Haines  330 

Enstone  v.  Friday  451 

Krskine  »•.  Townsend  .(2!) 

lOrving  r.  Beauchamp  65G 

Eskridgc  v.  McClurc     636,  651,  657 

Estcs  t'.  Cook  1  73 

Evans  v.  Elliott  180,  ih:. 

V.  Merriken  161 

V.  Thomas  213 

Evcrtson  r.  Booth.  309,  522 

V.  Ogdcu  330 

Ewer  V.  Hobbs  136 


F. 

Page 

Farquhar  v.  Morris  4*8 

Farmer's,  &c.  r.  Edwards  69 

Farrant  r.  Lovel  213,  214 

i:  Thompson  208 

Fav  r.  Brewer  140 

Feich  V.  Taylor  142,  218 

Felton  V.  Brooks  238 

Ferguson  v.  Ferguson  156 

r.  Kimball  108 

Fetter  v.  Cirode  264 

Fink  V.  Martin  564 

Firemen's,  &e.  *'.  Bay  6 

Fiske  V.  Fiske           '  109 

Fitch  ('.  Cotheal  6 

Fitchburg,  &c.  c.  Melven       175,  191 

Fitzgerald  v.  Beebe  298 

Flagg  V.  Flagg  151 

?'.  Mann  53,83,101 

Flanders  v.  Barstow  452 

V.  Lamphear  155 

Ford  u.  Russell  128 

Foster  v.  Briggs  583 

Fowler  v.  Rice  34 

Fox  ('.  Clark  574 

Franklin  c.  Gorham  215 

Frazee  v.  Insley  76 

Freeby  v.  Tupper  387 

Freeman  r.  Baldwin  29 

I'.  Edwards  168 

Frelinghuysen  c.  Coldcn  299 

French  »;.' Fuller                   •  173 

V.  Kennedy  261 

V.  Lyon  S7 

V.  Sturdivant  36 

Fricdiy  v.  Hamilton  38 

Frink  c.  Branch  264 

Frothingham  v.  MiCusick  208 

V.  .Shephard  12 

Fuller  i>.  Hodgdon  80 

V.  I'ratt  30 

/'.  Wadsworth  173 

Furbush  i\  Goodwin  224,  225 


G. 

(Jager.  Ward  -106 

(Jalt  I'.  Jackson  M 

(iamliril  v.  Doe  14  2 

(Janlner  r.  Astor  509 

r.  Gerrish  1 16 

r.  llrarlt  212 

v.  Webl)er  286 

(iarroih  v.  Sherman  217,  221 


INDEX  TO   CASES   CITED. 


XXV 


Page 

Page 

Garther  v.  Teaguc 

87 

Great  Falls  v.  Worcester 

140, 

145, 

Htes  V.  Adams 

337 

151 

General  v.  Hardy 

120 

Gree  v.  Lord 

423 

George's,  &c.  v.  Detwold 

151 

Green  v.  Dcmoss 

643, 

651 

Gibson  V.  Bailey 

257 

V.  Fowler 

627 

V.  Crebore         356, 

410, 

414, 

V.  Hart 

220, 

221 

423, 

424, 

503 

V.  Price 

577 

V.  McCormick 

343 

V.  Ramage 

■331 

Gilbert  v.  Averill 

340 

V.  Storm 

471 

V.  Maggord 

7,8 

V.  Tanner 

119, 

278 

Gilkeson  ??.  Snyder 

616 

Greenwood  v.  Taylor 

300 

Gill  V.  McAttee              619, 

C56, 

671 

Greer  v.  Chester 

280 

Gilleland  v.  Farling 

564 

Gregg  V.  Wells 

579 

Gillett  V.  Balcom 

162 

Grosvenor  v.  Day 

128 

V.  Campbell 

221 

Groton  v.  Boxborough 

147, 

166 

V.  Powell 

449 

Growning  v.  Behn 

645 

Gillis  V.  Martin 

33 

Gubbins  v.  Creed 

79 

Gilman  v.  Brown 

626 

Gurney  v.  Sepping 

520 

Given  V.  Doe 

240 

V.  Marr 

509 

H. 

V.  Tout 

231 

Givens  v.  McCalmont 

433 

Hadley  v.  Chapin 

467 

Glasscock  v.  Robinson 

653 

654 

V.  Houghton 

10 

Glidden  v.  Andrews 

337 

Hadlock  v.  Bulfinch       449 

,464 

479 

V.  Hunt 

527 

Haggarty  v.  Allaire 

78 

Glover  I'.  Payn 

86,87 

Hagthorpe  r.  Hook 

430 

434 

Godfrey  v.  Watson 

436 

Haigh,  ex  parte 

601 

Gooch  V.  Gooch 

9 

Haley  r.  Bennett 

614 

627 

Goodall's  case 

5 

Haliwell  v.  Tanner 

342 

355 

Goodhue  v.  Berrien 

320 

Hall  V.  Bell 

306 

Goodloe  V.  Clay 

323 

V.  Byrne 

104 

Goodman  v.  Grierson        80,  92 

100 

V.  Dench 

142 

V.  Kine 

212 

Halleck  i-.  Smith 

647 

Goodtitle  v.  Morgan 

190 

212 

Hallock  V.  Smith 

652 

Goodwin  I'.  Richardson  136 

,21? 

,218 

Halsey  v.  Reed               328 

,329 

,  343 

Gordon  v.  Hobart 

213 

Hamet  r.  Dundas 

42 

V.  Lewis  418,  428, 

430, 

439, 

Hammond  r.  Washington 

531 

441 

,446 

Hammonds  v.  Hopkins      31,  70 

,  360 

Gore  V.  Jenness 

211 

,  213 

Hampton  v.  Hodges 

207 

Goring  V.  Shreve 

376 

,381 

V.  Spencer 

47 

Gorson  V.  Blakey 

119 

Hanna  v.  Countryman 

149 

Gossin  V.  Brown 

313 

Hanson  v.  Derby 

213 

Gould  V.  Newman 

240 

Harbinson  v.  Harrell 

436 

,665 

V.  Tancred 

22 

Harmer  v.  Priestley 

17 

Gouldsworth  v.  Knights 

190 

Harmon  v.  Short 

149 

Grace  v.  Mercer 

579 

Harold  v.  Whitaker 

195 

Graggs  V.  Bailey 

652 

Harper  v.  AVilliams 

622 

Graham  v.  King 

301 

,320 

Harriett,  &c. 

255 

V.  Newman 

233 

Harrington  v.  Price 

611 

Grant  v.  Bissett 

277 

Harris  v.  Norton 

670 

r.  Duane 

368 

Harrison  r.  Eldridge 

475 

Graves  v.  Lyons 

622 

r.  Lemon 

27 

V.  Sayre 

137 

V.  Phillips,  &c. 

74 

Gray  v.  Baldwin 

206 

V.  Trustees,  &c. 

29,31,  35, 

V.  Jenks                   23 

,  14C 

,267 

1 

481 

VOL.  I. 

C 

XXVI 


INDEX   TO    CASES   CITED. 


Page 

Hart  r.  Clialkor 

2G2 

llartpole  c.  Walsh 

4 

Ilarti^liorn  r.  Hubbard 

153 

Ilartwell  r.  IJlocken 

106 

Ilartz  r.  Woods 

885 

Ilarvie  c.  Banks 

147 

UaskvW  r.  Haskell 

492 

Hastinjrs  v.  Pratt 

167 

Hatch  V.  Dwight 

217 

(•.Kimball            114, 

494 

595 

Haven  i:  Low 

140 

Hawkins  v.  May 

288 

Hawley  r.  Bennett 

t}G7 

668 

r.  Bradford 

397 

Ilayden  r.  Smith 

512 

Hayes  v.  Hall 

6GI 

Hayraer  v.  Haymcr 

366 

Haynes  r.  Stevens 

114 

Huad  r.  Egerton 

305 

Heath  v.  Williams 

138 

Hel)ron  i:  Centre,  &c. 

1 

Hedges  i:  Hedges 

533 

Heighway  i-.  rendlcton 

M 

490 

Heinkle  v.  Allstadt 

326 

Henderson  i*.  Herrod 

•232 

233 

V.  Stewart 

517 

Henry  v.  Bell 

105 

V.  Davis 

105 

Henry's  case 

415 

Hepworth  r.  Heslop 

595 

Herbert  r.  Hanrii.k 

665 

Hctfield  V.  Newton 

557 

Hewett  V.  Snare 

344 

Hewitt  r.  Loosemoi'e 

611 

Heycr  v.  I'ruyn 

335 

Hicks  V.  Bingham 

279 

r.  Hicks                     70,  9;{ 

102 

Hiern  v.  Mill 

608 

Hiesti-r  t'.  Madiera 

GO 

Higgon  r.  Mortimer 

208 

Hiles  V.  Moore 

444 

Hill  I'.  Jordan 

178 

V.  I'ayson 

47G 

V.  Bobcrt-son 

16 

r.  Smitli 

386 

Hilliard  >:  Allen 

4  21 

Hills  r.  Elliott                   «6, 

lo:) 

491 

Hilton  V.  Crist 

325 

Hinson  r.  I'artec 

57 

Hit<  hcock  /•.  Harrington 

370 

396 

Hilrliman  v.  Malton 

i(w; 

209 

Holart  r.  Satdmrn 

149 

152 

Hobson  r.  Bfll 

1  25 

Ho<kliy  r.  Bantork 

606 

HodgHon  V.  (ia-v^oignc 

162 

Hodgson  V.  Shaw 
Hogel  I'.  Lindell 
Hoggatt  r.  Wade 
Hogins  )•.  Arnold 
Hoi  brook  v.  Finney 
Holliday  v.  Franklin 
Holmes  v.  Fisher 
v.  Fresh 
V.  Grant 
Holridgc  r.  Gillespie 
Hone  V.  Fisher 
Honore  v.  Bakewell 


311, 


Page 

m 

633, 651 

27 

27 

664 

155 

42 

81,  50,  86,  92 

70,  80 

104 

632,647,  649, 

650 


Hoogland  v.  Watt 
Hoolo  V.  Attorney-General 
Hooper  t'.  Wilson 
Hopkins  r.  Garrard 

V.  Stephenson 
Horbach  v.  Riley 
Hough  V.  Canby 
Hovey  v.  Holcomb 
Howard  v.  Davis 
?•.  Harris 
{-.  Howard 
V.  Robinson 
Howlett  ('.  Thompson 
Hoxie  ?'.  Carr 
Hoyt  V.  Bradley 
Hubbard  r.  Savage 
Huckins  r.  Straw 
Hudson  )'.  Ishell 
Hughes  V.  Edwards 
r.  (Jraves 
V.  Worley 
Huling  ?'.  Dro.vell 
Hulings  v.  (iutlirie 
Hiunplirey  i\  Harrison 

I'.  Snyder 
Hunt  r.  Clark 
V.  Dujjuy 
)'.  Hunt 
V.  Maynard 
t'.  Tyler 
Huntington  v.  Smith 
Hutchinson  v.  Dearing 
Hy.lc  r.  Dallaw.iy 


398 

672 

136 

632 

86 

655 

657 

57 

2,  11,622 

60,  62 

7 

137,  143 

647 

135 

108 

291 

146 

58 

261 

161 

5,  42,  280 

77 

672 

207 

34 

592 

9 

4  9,  1  IS,  217 

49,  360 

73 

229,  24  7 

174,  175,  180 

148 


Hy ndman  r.  Hyndman  125,  129 


I. 

Ibbetsoii  r.  ibbt'lson 
Ibbotson  V.  Kliodcs 
Itig  r.  ('romwcll 
IpHwich,  &c.  V.  Story 


353 
578 
169 
467 


INDEX   TO   CASES   CITED. 


XXVIl 


Page 

Page 

Irwin  V.  Davidson 

213 

62G 

Johnson  v.  Stevens 

390 

V.  I^ongworth 

323 

V.  Sujrg 

647 

V.  Tabb 

304 

V.  White 
Jones  V.  Bruce 
V.  Phelps 

207,  329 
344 
304 

J. 

V.  Smith 
V.  Thomas 

594 
149,  162 

Jackman  v.  Halleck 

652 

Jackson  v.  Bowen 

551 

V.  Bronson 

146 

219 

V.  (Jolden 

546 

V.  Craft 

477 

V.  Davis 

448 

V.  De  Lancey 

254 

V.  Fuller 

178 

V.  Hopkins 

173 

V.  Jackson 

50 

V.  Laughhead 

174 

178 

V.  Massachusetts,  &c.        144 

V.  Myers  173,219 

V.  Packard  541 

V.  Pierce  13 

V.  Sfackhouse  178 

f.  Willard         138.217,376 

Jacob  f.  Milford  180 

James  v.  Bion  364 

V.  Fiske  6 

V.  Johnson  40,  287 

V.  Morey  285,  495 

Jamieson  v.  Bruce  141,  152 

Jaques  v.  Esler  565 

V.  Weeks      27,  37,  39,  53,  66 

Jarvis  v.  Whitman  315 

V.  Woodruflf  6 

Jason  V.  Eyres  46,  62 

Jencks  v.  Alexander  133 

Jenkins  r.  Eldredge  423 

Jennings  r.  Ward  77,  78 

V.  Wood  482 

Jen  ni  son  v.  Hapgood  414 

Jennot  v.  Cooly  160 

Jerome  v.  Seymour  485 

Jewett  V.  Candage  226 

V.  Hart  220 

V.  Partridge  149 

Johnson  v.  Bartlett  257 

r.  Bourne  286,470 

V.  Candage  372 

V.  Cawthorne  622 

V.  Gere  567 

r.  Johnson  502 

V.  Jones  182 

V.  Rice  423 

V.  Slawson  613 

V.  Staler  610 


K. 


Kauifclt  V.  Bower  621 

Keechr.Hall  163,174,175,177, 

243 

Kelly  V.  Bryan  54 

V.  Payne  651 

V.  Thompson  29,  30 

Kellogg  v.AVood  326 

V.  Rockwell  310,  419 

V.  Rand  326 

Kelleran  v.  Brown  48 

Kelso  V.  Kelly  299 

Kemp  V.  Earp  57 

Kent  V.  Allbritain  32 

V.  Kensington  180 

Kennedy  v.  Nedrow  390 

Kennaird  v.  Adams  575 

Kerr  v.  Gilmore  30 

Ketuhum  »'.  Johnson  87 

Keyes  v.  Wood  226 

V.  Williams  603,  605 

Killinger  r.  Reidenhauer  407 

Kilpatrick  r.  Kilpatrick  632 

Kimmel  v.  Willard  301 

King  V.  Bromley  68 

V.  Duntz  133 

r.  Harring  326 

r.  Harrington  663 

V.  King  99 

V.  Little  49 

87 

erchants,  &c.         359 

V.  The  St.  Michael's,  &c.     146 

V.  The  State,  &c.  16,  237,240, 

359,  437 

V.  Whitely  106,  328 

ex  parte  272 

f.  McVickar        317,318,490, 

510,  669 

Kinley  v.  Hill  460,  501 

Kinna  v.  Smith  216 

Kinnoul  v.  Money  8 

Kinnear  v.  Lowell  499 

Kirke  V.  Kirke  344 

Kirksey  v.  Mitchell  654 


u^fewman 
vTYhQ  Mt 


XXVIU 


INDEX   TO    CASES   CITED. 


Kittredgc  r.  Eockingbam,  &c. 


Pace 
235, 
237 

Kleiser  r.  Scott  644,64  7 

Kline  r.  Lewis  642 

Klofk  1-.  Cronkhite  385,  481 

Knickerbacker  r,  Boutwell  326,  501, 

668 

Knisely  r.  Williams 

Knowles  v.  Maynard 

Knox  r.  Moatz 

Kramer  v.  Bank,  &c. 

Kunkle  r.  "Wolfei-sbcrgcr 

Kyles  V.  Tait 


6411 
187 
325 

288,  323 
87,  95 

653, 658 


Labcrgc  v.  Chauvin 

231 

Lackey  v.  Ilolbrook 

150 

Lady  Superior  r.McNamara 

516 

517 

La  Farce  r.  Ilerter 

312 

Lagow  V.  Badollct 

629 

Lake  v.  Brutton 

320 

Lamb  v.  Foss 

153 

Lambert  v.  Hall 

264, 

500 

Lamson  v.  Sutherland 

280 

L'Anioreux  r.  Vandenburgh 

577 

584 

Langdon  v.  Paul 

208 

V.  Keith 

226 

Lanoy  v.  Athol 

308 

r.  Duke,  &c. 

310 

Lane  v.  Losec 

541 

Lanfair  r.  Lanfair 

111 

Langley  v.  Bartlett 

449 

Langstaile  v.  Fenwick 

443 

Larned  v.  Clark 

168 

234 

Lasselle  v.  Barnott 

563 

Latouchc  V.  Duiisany 

670 

Lawrence  v.  Lane 

455 

Lee  V.  Dozier 

316 

r.  rorter 

ft' 

568 

V.  Stone 

282 

Lcdyard  r.  Butter 

144 

Lced.f  I'.  Camirron 

29(» 

Leman  r.  Wliilley 

631 

Lewis  V.  Cajterton 

639 

64  7 

V.  De  Forest         202 

319 

438 

V.  Nanglr 

8 

,345 

V.  Bolandrt 

5H 

I'.  Starke 

232 

Ligon  V.  Aiexanrlcr 

628 

Lin;.'an  r.  Ilcmlerson 

656 

Lit  ill-  1'.  Mrown 

359 

(1 20 

Lilllcfield  V.  Crocker 

4(m; 

Livingston  v.  Jones 

517 

Livingston  v.  Xnn  Renssalac 
Lloyd  V.  !Mason 
V.  Scott 
Loaring,  ex  parte 
Lockhart  v.  Hardy 
Lotsky  V.  Mauger 
Long  r.  Storic 
LongstafF  v.  Meagoe 
Longstrect  r.  Shipman 
Longwith  v.  Butler 
Looraer  r.  AVheelwriglit 
Loring  r.  Cook 
Loud  V.  Lane 
Lovett  r.  Dimond 
Lovering  v.  Fogg 
Lowell  v.  ^lutual,  &c. 

V.  Shaw 
Lowrey  v.  Tew 
Lowndes  V.  Chisholm 
Ludlow  I'.  Gragall 
Lull  V.  Matthews 
Lund  ('.  Lund 

V.  Woods 
Lyle  V.  Ducomb 
Lyman  v.  Green 

V.  Little  301, 

Lyster  v.  Dolland 


M. 


rapo 

r  317 
445 
553 
625 
354 
445 

444,  546 
431 
484 
119 

494,510 
279 

366,  501 
525 
30,  143 
659 
139 
366 
430 
660 
166 
29 
405 
286 
639 

436,  639 
377 


Makcnzic  v.  Gordon  300 

Macombcr  v.  Mutual,  &c.  236 

Mackey  c.  Brownficld  563 

Mackreth  v.  Symmons  624,  646,  660 


McCall  V.  l^cnox 
McCammon  r.  ^\'orrall 
McC'lure  r.  Harris 
McConnell  /-.  llodson 
r.  Holobush 

Mi'Cormickr.  Higby 
McDaniels  r.  Colvin 

!•.  La]»ham 
McDonald  r.  I'.ia.k 


174,  256 

298 

649 

232 

364,  430, 

434 

375, 452 

285,  289, 294 

421,  475 

233 

V.  M<;l)onald  450 

McGan  v.  Marshall     31,  70,  217,  247 
McGinlry  v.  {{cevcs  564 

Met  liven  r.  Whceiock  465 

Mfdooilwin  V.  Stephenson  141 

M((Irea<ly  v.  Mctlnady  77 

MdHaaes  f.  H(tbl)S  •    174 

iM<dnlyre  r.  Williamson  l'^*' 

c.  Wliilficld  149 

McKinsiry  v.  Conly  70 


INDEX   TO   CASES   CITED. 


XXIX 


Page 
Mc  K  i  rcb  e  r  u.  Ilawley  188 

McKinn  v.  Mason  159 

McKiUip  r.  M(  Killip  630 

McKiiijilit  V.  Brady  632 

McLanalian  r.  McLanahan  34 

McLawin  c.  Wri;;lit  54,  57 

McLaughlin  v.  Shepherd  41 

McLean  v.  Lafayette  311,  329 

McLemore  v.  Mabson  568 

McMahan  v.  Kimball  392 

McTaggart  v.  Thompson  142 

McVay  v.  Bloodgood  233 

Magill  V.  Hinsdale  187 

Magruder  v.  OtTutt  370 

V.  Peter  632 

Magee  v.  Beatty  664 

Major  V.  Ward  125 

^la'llory  v.  Aspinwall  482,  543 

Mansony  v.  United  States,  &c.     149, 

190 
Manufacturers,  &c.  v.  Bank,  &c.  27 
Manhattan,  &c.  Evertson  665 

Mansell,  &e.  343 

Mantz  V.  Buchanan  395,  396 

Manigault  v.  Deas  467 

Mandeville  v.  Welch  605 

Manly  v.  Slason      622,  632,  647,  648 
Maples  V.  Maples  575 

Marlow  r.  Smith  254 

Marriott  v.  Givens  118 

V.  Handy  485 

Marsh  v.  Pike  327,  328 

V.  Rice  504 

Marks  v.  Pell  40 

Marvin  v.  Dennison  145 

V.  Vedder  459 

Martin  v.  Lundie  653 

V.  Mowlin  216,  242 

V.  Rapelye  261 

Marshall  v.  Stewart  35,  74 

Margrave  r.  Le  Hooke  272 

Marden  ;;.  Babcock  29,  576 

Marquis,  &c.  v.  Hisgens  78 

»  Manne,  &c.  v.  Biars  436 

Marston  r.  Brackett       571,  573,  589 
Mason,  &c.  344 

Massachusetts,  &c.t'.  Wilson  188,  191 
Matthie  i'.  Edwards  125 

Matthews  t;.  Wallwyn    216,529,532, 

534 
Mathews  v.  Aikin  311,  335 

Mattheson  r.  Hardwicke  349 

Maxwell  ('.  Montacute  47 

May  0.  Eastin  61,  81 

V.  Lewis  622 


Page 

May  ham  v.  Coombs 

664 

Maynard  v.  Hunt 

477 

Mayor,  &c.  v.  Blamire 

203 

Mayo  V.  Fletcher 

137 

V.  Judah 

78 

V.  Tompkins 

326 

Mayburry  v.  Brien 

395 

Mead  v.  York 

460 

Meacham  v.  Fitchburg,  &c. 

135 

Mechanics',  &c.  v.  Edwards 

554 

Medley  v.  Davis 

626 

V.  Mask 

524 

Megginson  v.  Harper 

180 

Meigs  V.  Dimock 

630 

Mellor  V.  Lees 

90,  99 

Mellish  V.  Robertson 

95 

Mennude  v.  Delaire 

362 

Menomy  v.  Murray 

362 

Merrils  v.  Swift 

262 

Merriam  v.  Barton 

434 

Merithew  v.  Sisson 

150 

Merritt  v.  Lambert 

16 

IMevey 

331 

Miami,  &c.  v.  Bank,  &c.      42,  59,  81, 

136,  310 

]\Iiddleton  v.  Middleton 

341 

Miller  v.  Donaldson 

456 

V.  Helm 

668 

V.  Hull 

293 

V.  Stump 

639 

V.  Wack 

319 

Mills  V.  Comstock 

671 

Milton  V.  Dunn 

185 

Mimsr.  Macon      616,617, 

618,630, 

631 

Miner  u.  Stevens  149,163 

IMitchell  V.  Preston  540 

Mix  V.  Cowles  293 

V.  Hotchkiss  437,  668 

Mobile,  &c.  v.  Talman  260,  261 

Mocatta  t'.  Murgatroyd  577 

.Montgomery  v.  Bruere  17,  141 

Moore's  Appeal  532 

Moore  v.  Cable  432 

V.  Degraw  417 

V.  Holcomb  622 

V.  Harrrisburg  520 

V.  Madden  36 

V.  Moberly  319,  321 

V.  Overseers,  &c.  147 

V.  Poland  6 

V.  Shultz             ^  467 

Morgan  i'.  Woodward  '  149 

Mordecai  v.  Parker  376 

Moree  v.  McGuire  166 


INDEX   TO    CASES    CITED. 


Morris  f.  Floyd 

V.  McOonnaugby 

r.  Nixon 

V.  Oak  ford 
Morrison  v.  !McLeod 
Morgan  v.  Davis 
V.  Morgan 
V.  Tipton 
Morse  v.  Clayton 
Morford  v.  Bliss 
Moreton  v.  Harrison 
Mosely  c.  Garrett 
Moses  V.  Muriratroyd 
Moss  V.  (iallimore 
Mott  V.  Clark 
Mounce  v.  Byars 
Mount  V.  Suydam 
Murdock 

Murphcy  v.  Trigg 
Myers  r.  White 

N. 


Page 

554 

347 

42,44,  101 

328,  507 

159, 213 

473 

359 

540 

449 

584 

G56 

12,  G57 

49,  125 

159 

385,535,536 

632 

628 

207,  208 

58 

180 


Napier  v.  Elam  565 

Nash  V.  Preston  17 

V.  SpoH'ord  7 

Natchez  r.  Minor  232,  56C 

Naylor  v.  Throckmorton  GflC 

Neal  I'.  Kcrrs  0  72 

Nealc  I',  llagthorpe  434,  435 

Neefus  v.  Vanderveer  545 

Neesoni  i'.  Clarksom  G31 

Neilson  v.  Lagow  143 

Neptune,  &o.  v.  Dorsey  514 

Newall  V.  Wright  190,  3U2 

Newell  I'.  Ilurlburt  324 
New  Hampshire,  &c.  v.  Willard    451 

Newcomb  v.  Bonham  27,  GO 
Now  York  Life,  &<:.  v.  Smith        535 

New  York,  &c.  v.  Peck  GGG 

Nichols  t;.  Cosset  543 

V.  Reynolds  4  2,  148 

Niles  V.  Nye  405 

Noel  V.  Jevon  1 7 

Norvel  V.  Johnson  C51 

Norton  V.  Stone  GG3,  MH 

V.  Warren  MO 

V.  Warn(;r  300 

NorriH  v.  Wilkinson  COl 

Northrnp  i'.  Cross  CC2 

Norwich  v.  llul.hard  135,  147 

North  I'.  IJclden  *JG3 

Northampton,  occ.  i*.  Ames  1  7K 

Noyes  V.  (/lark  537 

V.  Sturdivant  41 


Nugent  I'.  Riley 


O. 


Ogdcn  V.  Grant 
Ogle  V.  Ship 
Oldham  v.  Ilallcy 
I'.  Olley 
Olmsted  r.  Elder 

Ormsby  v.  Tarascon 
Orr  I'.  Hancock 
Orvis  r.  Newell 
Osborne  v.  Carr 
Otis  V.  Sill 
Ott  f.  King 
Ottman  v.  ^loak 
Overton  v.  Bifrelow 


Page 
33 


362 

283 
86 

169 

C9,  145,  219, 

474,  495 

129,  130 

263 
281,  318 

281 
6 


,579 

619 

312 

57 


P. 

Pager.  Broom  196,424 

V.  Foster  87,  436 

Paine  v.  French  231,  577 

V.  Palmer  647 

Palmer  r.  Yates  530 

Palmes  v.  Danby  413 

Pannell  v.  Farmer's,  &c.  664 

Pardee  v.  Van  Anken  510 

Parker  r.  Barker  563,  573 

I',  (heen  439 

V.  Ki'lly  650 

V.  Lincoln  11 

V.  Parker  427 

Parsons  v.  Freeman  352 

V.  Mumford  36 

V.  Welles         17,22,  24,  241 

I'artington  r.  Woodcock  184 

Parish  v.  Gilmanton  135 

Parkhurst  v.  Alexander  GC8 

Parkman  r.  Welch  327,  330 

Pascal  I'.  Sauvinet  G 

Patehin  r.  Pierce  50 

Patlison  i:  Hull  221 

Patlv  V.  Pease  330,  331 

Palton  f.  Page  341 

Patch  r.  King  492 

Patterson  r.  Brown  196,  424 

r.  .Johnson  632 

Pawlctt  V.  Attorney-General         861 

Payne  c.  Atlerbury  C59 

Peabody  r.  Fenton  536 

r.  Patten  6,  11,  277 

Pease  ?".  Benson  524 

I'earsall  r.  Kingsland  549,  553 

Vcaki',  ex  ptirtc  625 


INDEX  TO   CASES   CITED. 


XXXI 


Pelby  V.  Wathen 
Penman  v.  Hart 

Page 
265 
665 

Penniman  v.  Hollis 

104 

Pennington  v.  Ilanby 
Penrhyn  v.  Hughes 
Perkins  v.  Dibble 

428 
32 

67 
,429 
,479 

V.  Drye 
V.  Pitts 

76 
456 

Perry  v.  Brinton 

V.  Meddowcroft 

456 
92 

V.  Pearson 

57 

Peterson  v.  Clark 

210 

V.  Willing 

53 

Pettibone  v.  Stevens      308 

,437 

,565 

Peter  v.  Russell 

593 

Peters  v.  Goodrich  138,  -451 

,463 

,668 

Pettat  V.  Ellis 

472 

Pettengill  v.  Evans 

431 

Phelps  V.  Sage 
Phipps  V.  Budd 

477 
21* 

Phillips  V.  Hawkins 

V.  Saunderson 

246 

646 

V.  Thompson 
Philips  V.  Bank,  &c. 
Phoenix  v.  Clark 

517 

320 
535 

207 

Pickard  v.  Sears 

669 

Pierce  v.  Brown 

166 

V.  Potter 

383 

V.  Taylor 
Pike  V.  Armstead 

669 
665 

I'.  Collins 

669 

Pilkington  r.  Shaller 

202 

Piatt  V.  McClure 

129 

Piatt  I'.  Squire 

588 

Planters'  &c.  v.  Dodson 

645 

Plowman  v.  Riddle 

648 

Plunkett  V.  Penson 

376 

Pockley  i'.  Pockley 
Poignard  v.  Smith 

344 
241 

Poindexter  u.  McCannon 

5,86 

Pomet  V.  Seranton 

666 

Pomroy  i;.  Rice 
Pond  V.  Clarke 

450 
451 

Pool  V.  Hathaway 
Pope  V.  Briggs 

177 

485 
183 

Porter  v.  Clements 

372 

t'.  King 

387 

V.  Millet 

75 

V.  Nelson 

94, 

104 

V.  Perkins 

456 

•  V.  Read 

365 

V.  Smith 

265 

Portwood  V.  Outton 

6G8 

Post  V.  Arnot 

298, 

477 

V.  Dart                    553, 

554, 

558 

Page 

Post  V.  Dorr  444 
Powell  V.  Williams         382,  383,  423 

Powers  V.  Russell  573 

Powsely  V.  Blackman  157,  175 

Poyntnell  v.  Spencer  569 

Pratt  V.  Bank,  &c.  226 

V.  Thornton  19 

V.  Van  Wyck  627,  629 

President,  &c.  v.  Chamberlin  11 

Prescott  V.  EUingwood  145 

Preston  v.  Christmas  358 

Prewett  u.  Dobbs  664 

Price  V.  Price  81 

Prior  r.  White  574 

Proctor  V.  Thrall  486 

Purser  v.  Anderson  465 

Purvis  V.  Brown  364 

Purdie  v.  Millet  70 

Purefoy  v.  Purefoy  271 

Putnam  u.  Putnam  360 

Q. 

Quarrell  v.  Bickford  444 

Quinebaug,  &c.  v.  French  285 

Quinn  r.  Brittain  431,  442 

Quincy  v.  Cheeseman  443 


R. 

Ragsdale  v.  Flagg 
Ralston  v.  Hughes 
Rand  v.  Cartwright 
Rands  v.  Kendall 
Randolph  v.  Gwynne 
Rangeley  v.  Spring 
Randell  v.  Mallett 
V.  Phillips 
Rankin  v.  Mortimer 
Ransone  v.  Frayser 
Rathbone  v.  Clark 
Ravenel  v.  Lylcs 
Rawson  r.  Copeland 

V.  Eicke 
Raymond  v.  Raymond 
Rayland  v.  The  Justices, 
Raynham  v.  Wilmarth 
Reed  v.  Davis 

V.  Lansdale 

V.  Marble 

V.  Reed 
Reeves  r.  Scully 
Reinbard  r.  Bank,  &c. 
Remsen  r.  Hay 
Repp  V.  Repp 


&c. 


628 
147 
366 
408 
432 
596 
14, 112 
246 
96 
98 
337 
514 
328 
190 
219 
216 
405 
150 
283 
664 
430,  435 
526 
319 
74 
644 


XXXll 


INDEX   TO    CASES   CITED. 


Pa-c 

Pa!?c 

Hex  c.  Cathcringtoii 

147 

Ro\|land  r.  l^ay 

C37 

V.  Chailey 

146 

Rowan  v.  Adams 

525 

V.  Mattingly 

146 

Ruby  V.  Abyssinian 

149 

V.   OIlK'V 

146 

Ruckman  r.  Astor 

417 

422 

r.  Ted  ford 

146 

Runlet  r.  Otis 

53 

Rhoades  v.  Canfiold 

667 

Runvan  r.  Mersereau     140 

,216 

,  220 

r.  Tarker          109 

,110 

,155 

Russell  r.  Blake 

430 

Rice  V.  Bird 

105 

r.  Konney 

328 

r.  nice 

74 

,105 

V.  Pistor 

329 

,499 

r.  Tower 

144 

V.  Russell 

602 

Richards  r.  Syms 

475 

V.  Southard         75, 

76,86,87 

/-.  Tims 

475 

Russell's  Appeal 

650 

Richardson  e-.  Boright 

589 

Ruscombe  v.  Hare 

8 

V.  Baker 

627 

Ryall  V.  Rolle 

610 

r.  Firld 

537 

5G0 

Ryan  v.  Shawncetown 

311 

r.  Ilildreth 

250 

253 

Rickard  v.  Talhird 

4  78 

Right  v.  Btukiiell 

190 

S. 

Rigden  v.  Vallier 

244 

Ritchie  r.  Williams 

466 

Sage  I'.  Phelps 

477 

Ritger  r.  Parker             144, 

M5, 

218 

Salmon  v.  Clagett 

207 

663 

Roach  V.  Cosine 

51 

V.  Dean 

519 

Robbins  r.  Abi-ahams 

6 

Sampson  v.  Pattison 

22 

3G2 

V.  Eaton 

597 

V.  Williamson 

126 

Robert  i'.  Ilalstead 

230 

Sanders  v.  Reed 

209 

r.  Traders'  &c. 

239 

V.  llichards 

124 

Roberts  c.  Rose 

640 

V.  Van  Sickle 

189 

Robertson  i'.  Campbell 

541 

Sanford  v.  Wheeler 

294 

Robinson  v.  Cropscy             i 

3G,  94,  9G 

Sanden  v.  Hooper 

214 

V.  Collier 

575 

Satterthwaite  v.  Kennedy 

150 

V.  Farrelly 

18,  8G 

Saunders  r.  Frost      48,418 

,437 

,439 

r.  Guild 

54G 

I'.  Leslie 

625 

V.  Leavitt        372, 

4G7, 

494 

V.  Reid 

210 

r.  Preswick 

431, 

442 

Sauvenet  v.  Landrcaux 

669 

r.  Sampson 

490 

Savage  j*.  Carter 

468 

Rockwell  V.  Bradley 

171 

Schmidt  r.  llayt 

665 

I'.  Hobby 

G09 

GG2 

Schryver  r.  'IVller 

326 

Rocliester  v.  Whitehousc 

459 

Schenck  v.  ICIIingwood 

576 

Roc  1*.  Soley 

272 

Schnell  r.  Sehrocder 

467 

Rogers  v.  I  )c  Forest 

477 

Scott  1'.  Brest 

443 

f.  fJrazebrook 

150, 

157 

V.  Brit  ton 

57 

r.  Humphreys 

180 

V.  McCidlock 

634 

V.  Rogers 

471 

r.  AbFarlund 

27 

253 

V.  'IVaders'  &c. 

451 

Seals  V.  Casliin 

3G2 

Rogan  V.  AValker 

18 

Sears  v.  Smith 

626, 

64  7 

lioon  I?.  Murphy 

64  7 

Sehaor  r.  Rril)liin8 

326 

Root  V.  Bancroft     148,  216 

249 

311 

Sellers  v.  Stalaye 

54 

V.  Stow 

315 

Sessions  f.  l^aeoa 

7 

Roper  V.  MeCook 

651 

Sevier  v.  (Irecnway 

63 

R'wwoll  V.  Sim«)titon 

372 

Shaw  i:  dray 

334 

HoM-arriek  v.  Barton 

2'» 

r.  H<iadh'y 

370 

RfW-titer  r.  Cossit 

40G, 

407 

r.  L()u<i 

51G 

Roma  v.  Bank,  &c. 

^inr, 

Sharj)  r.  Vincent 

477 

1'.  Norvell 

58 

V.  Kerns 

650 

Rownlree  r.  Jacob 

62G 

Shannon  i'.  Bradstrcct 

243 

INDEX  TO   CASES   CITED. 


XXXUl 


Pa?e 

Shannon  v.  Marsellis  326 
Shapley  v.  Rangclcy       368,  504,  578 

Shafto  V.  Shafto  348 

Sheckell  v.  Hopkins  76 

Shelton  v.  Hampton  481 

Sherman  v.  Abbott  483 

V.  Gassett  543 

Sheidlc  v.  Weishlce  9 

Shepard  r.  Philbrick  162 

V.  Shepard  287 

Sheperd  v.  Adams  326 

Shelton  v.  Tiffin  648 

Shirley  r.  Sugar  633 

Shitz  V.  Drefienbach  610 

Shiveley  v.  Jones  573 
Silvester  V.  Jarman       216,255,256, 

359 

Silver,  &c.  v.  North  299 

Simers  v.  Saltus  187 

Simonton  v.  Gandolfo  486 

Simonds  v.  Brown  303 

Sims  V.  Helling  607 

Siter  V.  McClanachan  277 

Skeel  V.  Spraker  326,  333 

Skeflington  v.  Whitehurst  364 

Skillman  v.  Teeple  294 

Skinner  v.  Cox  18,  665 

V.  Miller  554 

Slaughter  w.  Foust  231 

Sleo  V.  Manhattan  Co.     86,  132,  515 

Slocum  V.  Catlin  494 

Smartle  v.  Williams  148,  158 

Smith  V.  Blaisdell  21 

V.  Canneir  116 

V.  Clark  527 

V.  Dyer  252 

V.  Goodwin  209 

V.  Kelley         16,225,226,372 

r.  Manning  370 

U.Moore  140,210 

V.  Peoples'  &c.  104 

V.  Pilklngton  195 

V.  Porter  149 

V.  Prince  451 

V.  Shepard  186 

V.  Smith  224,  474 

V.  Taylor  149,  180 

Soare  v.  Dalbey  441 

Sober  v.  Kemp  309 

Solomon  v.  Wilson  83 

Solms  I'.  McCulloch  666,  670 

Sonde rs  v.  Van  Sickle  189 

Southcrin  i\  Mcndum  223 

Sparks  v.  State  Bank  670 


Page 

288 

293 

596 

574 

311 

372 

61,  65 

23 

302,  591 

231 

559 

119 

590 

637 

664 

309, 473 

529 

58 

172 

328 

35 

565 

507 

19 

632 

216, 322 

37,  75 

149 

49 

105 

324 

572 

71 

232 

32 

545 

134 

203 

597 

Stover  V.  Herrington    319,  322,  481, 

575 
Stowell  V.  Pike  208 

Strong  V.  Stewart  49 

Streator  v.  Jones  86 

Stuart  V.  Abbott  644 

V,  Kissam  49 

Stuyvesant  r.  Hall  294 

Sumner  i>.  Barnard  113 

Sumpter  v.  Cooper  611 

Swabey  v.  Swabcy  508 

Swarthout  v.  Curtis  672 

Sweet  V.  Van  AVyck  515 

Swett  V.  Horn  16 

Svmons  v.  James  342,  344,  355 


Spader  r.  Lawler 
Spirras  v.  Caig 
Spofford  V.  Hobbs 
Sprague  v.  Graham 
Sprigg  V.  Lyles 
Spring  V.  Haines 
Spurgeon  v.  Collier 
State  V.  Laval 
State  Bank  v.  Campbell 

V.  Tweedy 
Stapp  V.  Phelps 
Stabback  v.  Leat 
Stafford  v.  Ballou 

V.  Van  Rensselaer 
Stansell  v.  Roberts 
Stamford,  &c.  v.  Benedict 
Stark  V.  Boswell 
Stamper  v.  Johnson 
Stedman  v.  Gasset 
Stevenson  v.  Black 
Stephenson  i'.  Thompson 
Stehley  v.  Irvin 
Stewart  v.  Anderson 

V.  Hutchins 

V.  Ives 

V.  Preston 
Stetson  V.  Gulliver 
Stevens  v.  Brown 

V.  Cooper 
Stephens  v.  Sherrod 
Stemmons  v.  Duncan 
Steele  v.  Adams 
St.  John  V.  Turner 
Stockton  V.  Johnson 
Stocking  V.  Fairchild 
Stoney  v.  American,  &c. 

V.  Shultz 
Stone  V.  Evans 
Story  V.  Johnson 


XXXIV 


INDEX   TO   CASES   CITED. 


Tabele  v.  Tabele 
TaniiLT  V.  Wells 
Tasburgh  i*.  Ecklin 
Tavlor  c.  Ailains 

r.  AUoway 

r.  Baldwin 

V.  Cliowning 

V.  Cole 

V.  Foote 

V.  Luther 

V.  Maris 

r.  Thomas 

i;.  TowiKsend 

I'.  ^Veld 
Tcaff  i".  Ross 

r.  Tiidford 
Teed  v.  Carruthers 
Teetor  i-.  Pierce 
Ten  Eyck  i:  Holmes 
Tenneut  v.  Dewees 
Terry  v.  Woods 
Tenlon  v.  Curtis 
Thatcher  i-.  Gammon 
Tharp  v.  Feltz 
Thayer  r.  Cam[)l)cll 

r.  Richards 
Thompson  v.  lioyd 

r.  Chandler 
V.  Dillenduler 
f.  Drake 
V.  Mcdill 
r.  Mack 
V.  I'atten 
V.  AVilliams 
Thomaston,  &c.. 
Thomaston  v.  Stimpson 
Tiiomes  i;.  Cleaves 
Thorneyeroft  v.  Crockett 
Thornton  v.  Knox 
Thorn hrougli  i'.  liakcr 
ThoriK!  r.  Tliorne 
Thred-ill  V.  I'intard 
'Ihuraton  c.  Kciinclt 
Thunder  r.  IJelcher 
Tice  r.  Annin 
Tichenor  »•.  Dodfl 
Ticijout  i:  Harmon 
'I'iornan  i'.  Heam 
V.  l*iM)r 
Tillolson  c.  IJoyd 
TilCord  r.  .JanicH 
Tillin^haHt  r.  Fry 
Tillcy  t;.  Daviaj 


53, 


202,  420, 


Paco 
390 
277 

36 
649 
628 
039 
119 
580 
652 

50 
298 
607 
431 
27,  30,  149 
464 
146 
453 
324 
329 
420 
232 
4 
558 
409 
217 
110 
394 
300 
441 
575 
650 
005 

58 
651 

42 
555 
541 
4  .'to 
0J7 
210 
142 
0;{5 
25a 
17;i 
381 
328 
502 
051 
6 
100 
320 
37;i 
272 


632, 


620, 


Titus  I'.  Neilson  391, 

Toby  V.  Read 
Toft  V.  Stephenson 
Toll  V.  Hiller 
Tooms  V.  Chandler 
Torrey  v.  Bank,  &c. 
Towle  V.  Hoit 
Towler  v.  Buchannans 
Trammell  r.  Simmons 
Trenton,  &c.  v.  WoodruH 
Trip[)  V.  Vincent 
Troth  I'.  Hunt 
Trulock  V.  Robcy 
Trull  v.  Skinner 
Truscott  c.  King 
Tucker  v.  Kccler 

V.  Thurston 
TuU  V.  Owen 
Turner  r.  BouchcU 

r.  Caincrons 
Tuthill  V.  Dubois 
Tweddcll  V.  Tweddell 
Tyler  i;.  vEtna,  &c. 

V.  Lake 

V.  Taylor 
Tyson  v.  Rickard 

U. 


Pace 

396,  397 
162 
634 

458,471 
112 
285 
372 
465 
645 

444,  490 

340,  449 
305 

370,418 
74 

294,672 
161 
361 
23 
128 
186 
605 

348,  352 
626 
501 

244,  511 
540 


Union  Bank,  &c.  r.  Edwards  295 

r.  Stallord  449 

Union,  &c.  r.  Emerson  431 

U.  States  r.  Hooe  285 

V.  Hodge  316 
Upham  V.  Brooks                    115,  4  76 

Upshaw  V.  Hargrove  039 


Vail  i".  Foster  04  7 

Vallance  r.  Savage  180 

Van  Bergen  r.  Demarcst  128 

Van  Huren  r.  Oliiistftad  50 

Van  Duren  r.  'l\M  626 
Van  Duyne  c.  'I'hayer    218,  250,  397 

Van  Hook  r.  Somerville  537 

Van  Ness  r.  Hyatt  370,  377 

Van  I'elt  r.  McCraw  210 

\'an  Rensselaer  r.  Aikiu  464 

Van  X'ronker  c.  i')a.stmau  413,414 
Van  Wagner  /•.  Van  Wagner  28,  285 

Vanderkemii  r.  Shelton  501,  535 

Vanncler  r.  Vanneler  288 

Va»ser  v.  Vasser  67 


INDEX    TO   CASES   CITED. 


XXXV 


Page 


Verner  v.  Winstanley 

90 

Weeks  v.  Eaton 

225 

Vernon  v.  Bethell 

61 

Weidner  v.  Foster 

180 

Viscount,  &c.  V.  Morris 

358, 

359, 

Wells  V.  Morse 

371 

,494 

367, 

370 

447 

Welch  ?,'.  Adams 

173 

,  186 

Vose  V.  Handy 

243 

Welford  v.  Beezely 
Wellborn  v.  Williams 

577 
651 

W. 

Wentz  V.  Dehaven 
Western,  &c.  v.  Eagle 

475 
307 

Wade  V.  Cooper 

314 

West  Branch,  &c.  v.  Chester 

408 

V.  Howard 

509 

AVesterdell  v.  Dale 

203 

Wade'3  case 

3 

Westervelt  v.  Haff 

13,  14 

Waddle  v.  Cureton 

468 

West  V.  Jones 

589 

Wadsworth  v.  Loranger 

58 

V.  Thornburgh 

631 

Waijer  v.  Chew 

335 

Wetberington  v.  Banks 

213 

Wakeman  v.  Banks 

171 

Wharf  I'.  Howell 

53 

102 

Wall  V.  Boisgerard 

263 

Wheeler  v.  Bates 

173 

Waller  v.  Tate 

388 

v.  Branscomb 

185 

V.  Todd 

565 

V.  Montefiore 

157 

Wallis  V.  Long 

485 

Wheelwright  r.  Loomer 

333 

Walton  V.  Withington 

420 

Whittrick  v.  Cane 

50 

Walker  v.  Reeves 

202 

Whitbread  i\  Smith 

.6 

V.  AValker 

47 

Whitbread's  case 

602 

Walcop  V.  IMcKinney 

149 

Whitney  r.  French 

32 

216 

Walling  r.  Aikin                5S 

,66, 

282 

V.  McKinney 

523 

Wales  V.  Mellen             149, 

152 

156 

White  V.  Butler 

300 

Warner  v.  Everett 

305 

V.  Denman 

664 

V.  Gouverneur  443 

523 

546 

V.  Dougherty 

647 

Warden  v.  Adams 

222 

V.  Hillacre 

267 

274 

Ward  r.  Sharp 

550 

V.  Knapp 

625 

Warren  v.  Hamstead 

517 

V.  Sasanavc 

632 

Warburton  r.  Lanman 

304 

V.  Stover 

651 

V.  Mattox 

590 

V.  Todd 

482 

Waring  v.  Smith 

216 

V.  Whitney 

136 

V.  Ward 

351 

Whittemore  v.  Gibbs 

223 

Washburn  v.  Goodwin 

389 

AVliitiiig  v.  Beebe 

285 

Watts  V.  Symes 

265 

AVhittaker  v.  Dick 

452 

Watson  V.  Di .kens 

57 

285 

Whitworth  v.  Gaugain 

606 

V.  Willard 

650 

WikofF  V.  Davis 

326 

Watkins  v.  Lockett 

57 

Wilder  r.  Houghton 

166 

Waters  i'.  Randall 

60 

V.  Smith 

651 

Waugh  V.  Riley                  5, 

473 

484 

V.  Whittemore 

154 

Way  V.  Patty 

• 

636 

Wilson  V.  Hardesty 

550 

Wease  v.  Peirce 

562 

V.  Hay  ward 

234 

Weaver  v.  Toogood 

335 

336 

V.  Hooper 

172 

Webb  V.  Flanders 

218 

479 

I'.  Troup             118, 

119, 

132, 

I'.  Patterson 

31 

217 

,495 

t.  Robinson          632, 

639 

652 

Wilson,  ex  parte 

164 

V.  Russell 

195 

Williams  v.  Bosan(iuet    200 

201 

204 

Webber  v.  Webber 

257 

V.  Birbcck 

535 

Wedge  V.  Moore 

406 

V.  French 

22, 

244 

V.  Russell 

195 

V.  Hilton           245, 

26l' 

438 

Weed  V.  Beebe 

622 

654 

V.  Kelsey 

574 

i\  Covin 

103 

V.  Owen      92,265 

311 

313 

V.  Lyon 

663 

r.  Roberts 

646 

V.  Stevenson 

18 

V.  Stevens 

528 

XXXVl 


INDEX   TO    CASES    CITED. 


Pago 

'Williams  V.  Sorrell  534 

i:  Stratton  G25 

V.  Roberts  64G 

r.  Thorne  336 

V.  Thurlow  469,  480 

V.  "Woods  638 

Willett  1-.  Winncll  71 

"Wilkins  r.  French  22,  244 

V.  Humphreys  G52 

"Wilcox  V.  Morris  59,  103 

Wilkinson  r.  Hall  153,157 

"Winter  v.  Garrard  4G9 

V.  Lord  Anson  G25 

"Winn  V.  Ham  550 

Win^  r.  McDowell  6G8 

"Wiiiborn  c.  (jorrcU  622 

AViiislow  I'.  ^Merchants,  &c.  161 

"Wiseman  v.  lleid  629 

"Withers  i:  :Morrell  567 

"Wolbert  r.  Lucas  114 

Wolcott  V.  Sullivan  522,  527,  531 

TVomble  V.  Battle  617,  620,  622 

"Wood  V.  Colvin  130 

V.  Felton  423 

I'.  Jones  361 

Woods  I'.  Bailey  653 

V.  Huntinjrford  350 

Woodruff  V.  llobb  33 

Wood  worth  v.  Goodman  670 

V.  Guzman  18 

Wooden  V.  Haviland  569,  571 


Woodard  r.  Fitzpatrick 
Woodward  v.  Woodward 
Woodson  V.  Perkins 
Woodbury  v.  Aikin 
Woolen  r.  Hiller  ; 

Worthin<xton  v.  ^Morgan 
AVork  V.  Harper 
Wragg  r.  Comptroller,  &c 
Wrixon  v.  Cotter 
Wright  V.  Bates 

r.  Parker 

V.  Kose 

v.  Tukey 
Wyatt's  case 
Wyckoff  r.  Remsen 


Y. 

Yarborough  v.  Newell 
Yates  r.  Ashton 
Yelverton  v.  Shelden 
Youle  V.  Richards 
Young  *•.  Fnglish 
r.  Wood 

Z. 

I  Zane  r.  Pickcrson 
Zeiter  v.  Bowman 
I  Zentroyer  v.  Mittower 


Page 

547 

632 

282 

484 

485 

591 

668 

622 

72 

55,  79,  86 

227 

125,  340 

141 

15 

665 


57 

98 

322 

74 

265 

649 


57 

180 
621 


THE  LAW  OF  MORTGAGES. 


CHAPTER  I. 


1.  Definition  of  a  mortgage.  Dis- 
tinction between  a  mortgage  and  tlic 
viviim  vadium,  &c. 

4.  AVbat  may  be  mortgaged. 

5.  Parties  to  a  mortgage :  Aliens ; 
married  women  ;  infants ;  joint  tenants, 
&c. 

24.  Early   construction    of  the   con- 


dition   of    a    mortgage ;     performance, 
tender,  &c. 

34.  Form  of  expressing  the  condition  ; 
stipulation  for  reconveyance,  &c. 

39.  Mortgages  for  years. 

40.  Jurisdiction  of  Courts  of  Equity 
over  mortgages. 

43.  Equity  of  redemption. 


1.  Various  definitions  of  a  mortgage  have  been  given  by 
different  judges  and  elementary  v^nriters,  some  of  which, 
although  presenting  a  correct  general  view  of  the  subject, 
cannot  be  considered  as  precisely  accurate.  Thus,  a  mort- 
gage has  been  defined  to  be  a  conveyance  of  lands  by  a 
debtor  to  his  creditor,  as  a  pledge  or  security  for  the  repay- 
ment of  a  sum  of  moneij  borroived;  with  a  proviso,  that  such 
conveyance  shall  be  void  on  payment  of  the  money  borrowed, 
with  interest,  on  a  certain  day.i  (a)  It  is  quite  obvious,  how- 
'  2  Greenl.  Cruise,  79.     Sec  also  Jac.  Law  Diet.  Mortgar/e;  2  Black.  Com.  157. 


(o)  "  A  mortgage  is  always  founded  on  a  loan."  Chapman  v.  Turner,  1 
Call.  252.  Mr.  Coote  says,  (Cooto,  13[),)  "A  mortgage  is  a  debt  by  spe- 
cialty, secured  by  a  pledge  of  lands,  of  -which  the  legal  ownership  is  vested 
in  the  creditor,  but  of  which,  in  equity,  the  debtor  and  those  claiming  under 
him  remain  the  actual  owners,  until  debarred  by  judicial  sentence,  by- 
legislative  enactment,  or  their  own  laches."  See  Loyd  v.  Currin,  3  Humph. 
(Tenn.)  4G4.  At  common  law,  a  mortgage  must  be  by  deed.  Hebron  r. 
Centre,  &c.  11  N.  H.  571. 

VOL.    I.  1 


2  TUE   LAW    OF   MORTGAGES.  [ciI.  I. 

ever,  that  the  clement  of  borrowed  money,  as  necessary  to 
constitute  a  mortgage,  is  wholly  fanciful.  This  definition,  if 
strictly  accurate,  would  exclude  that  large  class  of  mortgages, 
perhaps  larger  than  any  other  whatever,  where  land  is  sold 
and  conveyed  by  one  person  to  another,  and  the  latter  at  the 
same  time  mortgages  it  back  to  secure  payment  of  the  whole 
or  a  part  of  the  purchase-money,  [b) 

2.  A  more  coiTect  definition  of  a  mortgage,  therefore, 
would  seem  to  be,  the  conveyance  of  an  estate  by  way  of 
pledge  for  the  security  of  debt,  and  to  become  void  on  pay- 
ment of  it.^  Or,  a  conditional  conveyance  of  land,  designed 
as  security  for  the  payment  of  money  or  performance  of 
some  other  act,  and  to  be  void  upon  such  payment  or  per- 
formance.- Or  an  absolute  pledge,  to  become  an  absolute 
interest,  if  not  redeemed  at  a  certain  timc."^  (c)     Or  an  estate 

'  4  Kent,  133.  -  1  Kill,  on  I\.  P.  371  ;  Montgomery  r. 

J  1  Vow.  7.  Biucre,  1  South.  2G8. 


(li)  In  some  respects,  by  statutory  provisions,  this  class  of  mortgages  is 
placed  on  a  diirerent  footing  from  any  other.  Thus  in  Indiana,  Arkansas, 
and  Wisconsin,  the  widow  of  the  mortgagor  has  no  dower.  Ark.  L.  41,  45, 
46 ;  "Wiscon.  Rev.  St.  333  ;  Ind.  Rev.  Sts.  But  see  Nottingham  r.  Calvert,  1 
Cart.  527,  that  in  Indiana,  she  has  dower  in  equity.  In  New  Jersey  and 
Delaware,  (if  recorded  in  sl.\ty  days,)  such  mortgage  is  made  valid  against 
judgment  creditors  of  the  mortgagor.  N.  J.  Rev.  St.  G44  ;  Dela.  Rev.  Sts. 
2G9.     Sec  Howard  v.  Davis,  C  Tex.  174. 

(c)  The  title  of  a  mortgagee  is  said  to  he  not  a  mere  //t'»,  depending 
on  possession,  but  a  real  interest,  tliough  conditional.     Barnard  r.  Eaton, 

2  Cush.  304.  It  is  a  Ucn,  and  .'something  more  ;  a  transfer  of  the  property 
itself,  as  Bccurity  both  in  etjuity  ami  law.  It  is  a  trust  estate.  When  the 
debt  is  discharged,  there  is  a  resulting  trust  for  the  mortgagor.  A  mortgage 
is  called  a  lien,  oidy  in  a  loose  ami  general  sense,  in  contrast  with  an  abso- 
lute and  indefea-sible  estate.  Opinion  of  U.  S.  Sup.  Ct.,  cited  in  Evans  v. 
Mcrrikcn,  8  fiill  &  J.  47;  Conard  r.  The  Atlantic,  &c.  1  Pet.  441.  The 
matter  must  be  the  subject  of  stipulation  and  agreement  between  the  jjartics. 

3  Humph.  (Tenn.)  UA. 

From  these  definitions  it  may  be  seen,  how  a  inorlf/(tg>:  or  dead  jded^'C  d'll'- 
fer.s  from  another  form  of  security  formerly  in  use,  ternied  vadium  vivum,  or 
lU'inf/  plcdfje.     Tlii:)  <;onlract  or  conveyance  has  become  nearly  obsoleti',  and 


CU.  I.]  THE   LAW    OF   MORTGAGES.  3 

upon  a  condition,  defeasible  by  the  performance  of  the  con- 
dition according  to  its  legal  effect.^ 

3.  The  name  mortgage  originally  signified,  that  the  estate 
conveyed  became  dead  or  extinct  to  the  mortgagor,  unless  the 
condition  was  performed  at  the  time  appointed.  A  mortgage 
was  a  feoffment  upon  condition,  or  the  creation  of  a  base  or 
determinable  fee,  with  a  right  of  reverter  attached  to  it.  The 
debt  was  required  to  be  tendered  at  the  time  and  place  pre- 
scribed ;  and,  in  general,  the  transaction  was  held  subject  to 
the  strict  rules  which  governed  conditions.^ 

'  4  Erskinc  v.  Townsend,  2  Mass.  495.        -  "Wade's  Case,  5  Co.  114;  Goodall's 

Case,  ib.  95;  Lit.  §  332;  Co.  Lit.  205. 


therefore  requires  only  a  brief  notice.  The  vadium  vivum  was  where  a  man 
borrowed  a  certain  sum  of  another,  and  made  over  an  estate  of  lands  to  him, 
until  he  had  received  that  sum  out  of  the  issues  and  profits  thereof,  and  was 
so  called  because  neither  the  money  nor  the  lands  were  lost ;  for  the  latter 
were  constantly  paying  off  the  former,  and  were  not  left  as  a  dead  pledge 
in  case  the  money  was  not  paid.  1  Pow.  3  ;  Coote,  43.  Still  another  form 
of  conveyance  by  way  of  security,  but  one  rarely  adopted  in  practice,  is  the 
Welsh  mortgage.  In  a  Welsh  mortgage,  the  profits  keep  down  the  interest, 
instead  of  the  principal,  as  in  the  vivum  vadium;  and,  of  course,  no  length 
of  possession  gives  the  mortgagee  an  absolute  title.  But,  where  the  profits 
are  excessive,  equity  will  order  an  account.  1  Pow.  373,  a,  and  n,  E.  See 
Thayer  u.  Mann,  19  Pick.  538;  Conway  r.  Shrimpton,  5  Bro.  Pari.  187, 
Another  form  of  Welsh  mortgage  is  where  the  deed  is  made  in  trust,  that 
the  mortgagee,  after  paying  interest  and  expenses,  shall  apply  the  surplus 
proceeds  to  the  principal.  3  Ib.  1148,  a:  Coote,  207.  In  a  Welsh  mortgage, 
no  covenant  for  payment  of  the  debt  is  inserted,  and  the  mortgagee  has  no 
remedy  to  compel  redemption  or  foreclosure  in  equity,  though  the  mortgagor 
may  redeem  at  any  time.  Coote,  222,  223.  In  some  instances,  the  estate  is 
conveyed  to  the  mortgagee  and  his  heirs,  till  from  the  rents  and  profits  he 
shall  receive  principal  and  interest,  which  is  in  the  nature  of  a  Welsh  mort- 
gage, and  was  compared  by  Lord  Hardwicke  to  a  tenancy  by  elegit,  so  that 
the  estate  ceased  upon  payment  of  the  debt,  and  the  mortgagor  might  main- 
tain ejectment,  unless  the  mortgagee  had  remained  in  possession  twenty 
years  after  such  payment ;  which  time  would  also  bar  the  equity  of  redemp- 
tion. And  his  Lordship  said,  the  mortgagor  had  the  same  right  as  the  conu- 
sor under  the  elegit  had,  to  come  into  a  court  of  equity  for  an  account.  In 
a  similar  case,  time  was  held  no  bar  to  redemption,  although,  by  the  mort- 


4  THE    LAW    OF   MORTGAGES.  [cil.  I. 

4.  All  property,  real  or  personal,  corporeal  or  incorporeal, 
movable  or  immovable,  may  be  the  subject  of  mortgage. 
Thus,  advowsons,  rectories,  and  tithes;  reversions  and 
reniaiiukTs;  possibilities ;  (^/)  rents;  franchises.  But  (it  is 
said)  a  debtor's  wearing  apparel,  bed,  or  other  necessary 
articles,  beasts  of  the  plough,  tools  of  trade  or  profession,  as 
the  axe  of  a  carpenter  or  books  of  a  scholar,  not  being  sub- 


ga^or's  own  showing,  more  than  sixty  years  liad  elapsed  since  the  mortgagee 
took  possession.  Orde  v.  llcming,  1  Vern.  418;  Coote,  223.  In  Ilartpole 
r.  Walsh,  (5  Bro.  P.  C.  275,)  a  bill  to  redeem  a  mortgage  in  the  nature  of  a 
Welsh  mortgage  was  dismissed  in  the  Irish  Chancery,  and  on  appeal  to  the 
English  House  of  Lords  the  judgment  was  aflirmed.  In  that  case,  a  second 
mortgage  had  been  made  to  the  same  party,  conditioned  to  pay  the  whole 
debt  at  any  time  after  eighteen  months'  notice  ;  which  notice  had  long  since 
been  given.  Coote,  223.  But  in  a  later  case,  (Teulon  v.  Curtis,  Younge, 
019, )  Lord  Lyndhurst  considered  this  decision  to  have  been  made  on  the 
ground  of  the  impossibility  of  taking  the  long  and  complicated  accounts  after 
the  lapse  of  ninety  years,  and  of  unreasonable  delay  in  prosecuting  the  suit 
for  redemption.  In  that  case,  a  reversion  in  foe,  expectant  on  a  life-estate, 
had  been  demised  for  five  hundred  years,  redeemable  on  payment  of  the 
mortgage  debt,  but  without  any  definite  time  fixed  for  payment.  The  mort- 
gagor covenanted  to  pay  the  debt  on  demand  ;  and  that,  until  payment,  the 
mortgagee  might  enter  and  enjoy  the  premises.  Lord  Lyndhurst  held  this 
to  be  in  the  nature  of  a  Welsh  mortgage,  and  dismissed  a  bill  filed  for  fore- 
closure. 

Mr.  Coote  says,  of  the  origin  of  mortgages, — "  In  early  tiuus,  the  Jews 
were  the  great  money-lenders.  It  was  held  usury  (or  Christians  to  lend 
money  at  interest;  an<l,  accordingly,  if  lands  were  enfeofFed  to  a  creditor, 
and  the  rcnt.s  and  profits  received  by  him,  and  not  applied  to  the  principal 
of  the  debt,  although  not  prohibited  l)y  the  King's  Court,  it  was  iiunishable 
by  fdrfiMlurc  of  his  lamls  and  chattels,  if  he  died  possessed  of  the  plc<lge. 
And  this,  according  to  (JIaiivillc,  was  the  original  imaniiig  of  the  term  mor- 
luum  viuliiiin,  and  not  thi^  meaning  subserjuently  attached  to  the  word  by 
Littleton  ami  others."  Hence,  ui'cording  to  i\Ir.  Coote,  (Coote,  41,)  the 
vivutn  vtnlium  w;is  a  Heeiirily,  by  whicii  the  rents  were  from  time  to  time 
applied  to  reiluce  the  princi[ial  of  the  debt ;  the  mortuum  niilitim  one,  by 
which,  till  payment  of  a  certain  sum,  the  rents  were  received  by  the  creditor 
and  not  accounted  for. 

('/)  It  is  caid,  (2  .Story,  Ki\.  !}  lojl.)  a  possiljility  or  ex])eclaiic\ ,  like  that 
of  an  /irir,  cannot  be  niortgagnl.     Otherwise  by  the  ci\il  law. 


CH.  I.]  THE   LAW    OF   MORTGAGES.  5 

ject  to  execution  or  distress,  cannot  be  mortgaged  or  pawned, 
without  delivery  of  actual  possession. (e)  Neither  can  a  pew, 
it  seems,  be  mortgaged  in  gross.  If  appurtenant  or  annexed 
to  a  house,  it  may  be  mortgaged  with  the  house,  and  if  in 
the  chancel,  may  perhaps  be  assigned  in  gross.  Nor  can  a 
flowing  stream  of  water  be  the  subject  of  mortgage,  being 
publiri  juris  ;  and  an  individual  can  only  gain  a  right  to  it,  by 
appropriating  so  much  as  he  requires  for  a  beneficial  purpose.^ 

5.  With  reference  to  the  parties  to  a  mortgage,  a  mort- 
gagee must  be  one  capable  of  holding  real  estate ;  and,  it 
seems,  any  one  thus  capable  may  be  a  mortgagee.  An  alien 
may  take  a  mortgage,  but  cannot  hold  the  property  against 
the  king.  Until  office  found,  however,  it  remains  in  the 
mortgagee.  If  he  die  before  office  found,  the  law  will  vest 
the  freehold  and  inheritance  in  the  king.  If  two  be  mortga- 
gees jointly,  one  of  whom  is  an  alien,  and  he  die,  the  other 
will  not  hold  the  whole,  but  the  king  will  take  a  moiety  ;  but 
till  office  found,  the  moiety  survives.  When  the  king  takes 
the  mortgaged  premises,  the  condition  is  discharged,  and  he 
holds  absolutely ;  and  it  should  seem  that  the  estate  is  also 
freed  from  the  equity  of  redemption  of  the  mortgagor  in  the 
king's  hands.  But  if  the  lands  are  reconveyed  before  office 
found,  the  lien  of  the  crown  is  gone.-  (/) 

6.  A  feme  covert  may  be  a  mortgagee.  {^)     So  an  infant. 

1  1  Pow.  17,  a  and  n  ;  Coote,  150.  -  1  Pow.  106,  and  n. 

(e)  In  Virginia  a  mortgage  of  property  exempt  from  execution  is  prohib- 
ited.    Vir.  Code,  500. 

(/)  A  writ  of  entry  to  foreclose  a  mortgage  lies  against  an  alien  mort- 
gagor. AVaugh  V.  Riley,  8  Met.  290.  An  alien  is  entitled  to  have  a  mortgage 
foreclosed  in  equity,  and  the  land  sold.  The  demand  is  regarded  as  a  per- 
sonal one,  the  debt  being  the  principal  and  the  land  merely  incident. 
Hughes  u,  Edwards,  9  Wheat.  489.  In  the  United  States,  the  law  has  been 
very  generally  changed,  so  as  to  allow  aliens  to  hold  real  estate.  Of  course, 
this  statutory  privilege  includes  the  title  by  mortgage.  In  New  Jersey, 
an  act  provides  specially  for  an  alien's  taking  a  mortgage.     N.  J.  Rev.  Sts.  2. 

(^)  Whether  she  can  have  a  separate  interest  in  a  mortgage,  sec  Cutler 
V,  Lincoln,  3  Cush.  125.  A.  married  one  of  the  two  daughters  of  B.,  a 
1* 


6  THE    LAW   OF   MORTGAGES.  [cH.  I. 

It  has  been  said,  the  former  cannot  be  a  mortgagor,  unless  by 
construction  of  equity  on  an  agreement  that  she  shall  possess 
separate  property.  She  may  make  an  equitable  mortgage  of 
such  property,  without  the  concurrence  of  trustees,  unless 
this  be  required  by  the  instrument  under  which  she  holds  the 
property.  And,  if  she  has  a  power  of  appointment  which 
may  be  exercised  by  her,  notwithstanding  her  coverture,  she 
may  appoint  a  conditional  estate.^ 

7.  In  Demarest  v.  Wynkoop,-  it  was  held,  that  a  wife  may 
mortgage  her  separate  property  for  her  husband's  debts,  with 
a  power  of  sale  in  case  of  default,  and  may  reserve  the  equity 
of  redemption  to  the  husband,  who  alone  can  dispose  of  it. 

7  a.  So  it  has  been  held,  that  in  all  cases  where  the  wife 
has  a  separate  estate,  however  created,  or  whether  or  not 
conveyed  to  a  trustee  for  her  use,  she  has,  in  equity,  the  same 
power  over  it,  and  may  bind  it  by  mortgage,  without  her 
husband's  joining  in  the  deed,  as  if  she  were  a  feme  so/e.^ 

7  b.  A  husband  bought  real  estate,  and  directed  the  deed 
to  be  made  to  another  person,  in  trust  for  his  wife,  with  a 
power  of  appointment  to  her  by  writing  under  seal  or  by 
will.  The  trustee  and  the  wife  afterwards  executed  a  mort- 
gage of  the  real  estate,  to  secure  a  debt  due  from  the  husband, 
wliiili  mortgage  was  duly  acknowledged  by  the  wife.  Held, 
tlic  luorlguge  was  good.'* 

'  1  Tow.  lOG.  107,  ami  tt.     Sec  Tier-  S.  &  M.  144;  Rein  r.  Iloatli,  6  How. 

nan  v.  Poor,  1  (Jill  &  J.  21G  ;  nriuuli;:c  228,  Dij;.  1848,  214  ;  Fitch  v.  Cotlieal, 

V.  Poor,  2,  1  ;  Kddk-ston  v.  Collins.  17  2   Sandi".   ("Ii.   29;    Loomir   r.    Wiiccl- 

Khj,'.   Law  &  lv|.  2'JC;     Pascal  v.  Sail-  wri^'lit,  .'l  Siiiidf.  C"l).  K)5. 

vinct,  1  La.  Ann.  428  ;  Jarvis  ;•.  Wood-  '  .'t  .lolms.  Cli.  144. 

ruflr.  22('onn.  .'■)4H;  Wliitl.road  r.  Siiiitli,  •'  Fircnicns,  &c.  v.  IJay,  4  Biirh.  407. 

2.3   Kn;,'.  Law  &,   K.].   r,:,\  ;   I'cahody  v.  *   KiAilnu-^  r.  Aliraliams,  1   Halst.  Cli. 

I'allcn,  2  J'ick.  .'il7  ;  James  v.  Kisk,  'J  40.'i. 


decCi'wd  intistatt!  ;  slio  aftcrwanls  died,  williout  issiic.  A.  adniiiiistcrcd  on 
licr  estate.  Ilfld,  Ik;  nii;i;lit  claim  licr  share,  of  the  amount  due  on  a  morlj^ago 
j;ivcn  to  IJ.  in  hl.s  lifetime  l>y  C,  who  married  the  other  danj:;liter.  Moore  u. 
Poland,  I  Ilalst.  Cli.  .OH.  A /<mr  snlr  hcHs  land,  taking;  back  a  writing, 
wliidi  Hecuresalien  on  the  land.  Held,  a  mortgage,  and  upon  hei  marriage, 
that  the  hnsl;and  might  relea.Me  it.     Marshal  r.  Lewis,  I   I. id.   1  I". 


CH.  I.]  THE   LAW    OF   MORTGAGES.  7 

7  c.  In  Mississippi,  a  married  woman  may  bind  her 
separate  estate  by  a  mortgage  executed  jointly  with  her 
husband.^ 

8.  A  mortgage  by  husband  and  wife,  of  her  land,  with 
covenants  of  warranty  by  both,  estops  both  to  deny  her  title 
at  the  time  of  the  conveyance.  Nor  can  they,  in  an  action 
upon  the  mortgage  against  them,  be  permitted  to  show,  that 
after  the  commencement  of  such  action  she  acquired  a  new 
title,  under  which  they  hold  possession.  The  doctrine  of 
rebutter^  to  avoid  circuity  of  action,  is  not  admissible  in  such 
cases.2 

9.  A  house,  subject  to  mortgage,  was  conveyed  by  war- 
ranty deed,  in  trust  for  a  married  woman,  with  the  consent 
of  her  husband,  and  paid  for  with  money  which  was  hers 
before  marriage.  The  husband  and  wife  took  possession. 
The  wife  afterwards  procured  a  divorce  a  mensa,  and  the 
grantee  conveyed  the  house  to  her.  Before  the  divorce  the 
husband  took  an  assignment  of  the  mortgage,  entered  legally 
for  foreclosure,  and  then  transferred  the  mortgage  to  the 
plaintiff,  who  brings  this  action  (of  forcible  detainer)  against 
the  wife.  Held,  the  assignment  of  the  mortgage  to  the  hus- 
band w^s  not  fraudulent  as  to  the  wife  or  the  mortgagor ; 
that  the  plaintiff  had  the  legal  title,  and  was  entitled  to 
judgment  for  possession.' 

10.  If  a.  feme  covert  join  her  husband  in  a  mortgage,  repre- 
senting her  to  have  a  power  of  appointing  in  fee,  though  she 
had  in  fact  only  a  separate  estate  for  life,  the  mortgagee  may 
still  enforce  his  security  against  her  life-estate.^ 

11.  In  case  of  money  lent  by  the  wife  from  her  separate 
estate,  on  mortgage ;  the  mortgage  security  wiU  foUow  the 
nature  of  the  money  represented  by  it,  and  the  wife  will  have 
similar  rights  over  it.^ 

12.  Upon  a  mortgage  jointly  executed  by  husband  and 
wife,  a  scire  facias  is  properly  brought  agamst  both.^ 

'  Sessions  v.  Bacon,  23  Miss.  (1  Cusli.)  272.       -  Nash  v.  Spofford,  10  Met.  192. 

^  Howaiil  V.  Howard,  3  Met.  548.  *  Cootc,  154. 

*  Cootc,  154.  6  Gilberts.  Maffgorcl,  1  Scam.  471. 


8  THE    LAW    OF   MORTGAGES.  [CH.  I. 

13.  And  it  seems,  the  ^vife  must  be  made  a  party,  to  bar 
her  dower.' 

14.  Where  the  husband  borrows  money  on  the  security  of 
the  wife's  estate*,  the  money  being  under  his  control,  it  is 
supposed  to  come  to  his  use,  and  the  burden  is  on  him  to 
prove  other^vise.     Parol  evidence  is  admissible.^ 

15.  If  the  loan  is  for  his  benefit,  and  is  paid  from  her 
estate,  she  or  her  heir  will  stand  as  creditor  of  his  estate  to 
that  amount,  in  place  of  the  mortgagee ;  and  will  have 
preference  of  his  legatees,  though  not  of  his  creditors.'^ 

16.  If  the  money  be  raised  by  the  husband  to  pay  off  debts 
of  the  wife  incurred  duvi  sola,  her  estate  must  bear  the 
burden.'' 

17.  Parol  evidence  is  admissible,  that  the  wife  or  her  heir, 
after  the  death  of  the  husband,  promised  to  relinquish  their 
claim.  But  not,  it  seems,  of  a  declaration  by  the  wife,  that 
the  money  was  intended  by  her  as  a  gift  to  the  husband, 
contrary  to  the  express  language  of  the  deed.'' 

18.  The  claim  of  the  wife  will  not  be  waived  by  her  cove- 
nant after  the  husband's  death,  that  the  estate  shall  stand 
chargi'd  with  the  original  debt,  and  with  a  furtlier  sum 
advanced  to  her.'^ 

19.  If  a  wife's  estate  is  subject  to  mortgage,  the  husband 
and  wife  are  not  bound  to  keep  down  tlie  interest  for  the 
benefit  of  her  heir;  and,  therefore,  the  amount  of  interest 
due  at  her  death  should  be  added  to  the  |)riiicipal.  and  the 
husband,  as  tenant  by  the  curtesy,  shouhl  Ueej)  (K)wn  the 
intercut  of  the  aggregate  sum  (luring  his  lil'c.  Hut  lie  cannot 
claim  for  interest  paid  by  him  (hiring  the  life  of  the  wife.' 

]'.)(!.  A  wife  joined  with  her  husband,  in  a  mortgage  on 
their  s(!j)arat('  estates,  to  secure  his  tlebt.  Atterwards  he  sold 
his  own  j)roperty,  and  the  purchaser  received  a  (h-ed  from 
both,  and  jKiid   liini  a  sum   su[)pose(l    to   Ix;   suliieieni    to   pay 

'  fJilltcrt  V.  MflBfjonl,  I  Sram.  JTI.  '  I/e\viH  v.  "Sani^lc,  Am!i.  ITiO. 

'■'  Kiiinoiil  V.  Money, -3  Swniist.  L'OH,  f-  (UmW,  :>y.h 

n. :  Clinioii  r.  II<jo|ht,  I   N'ih.  jr.  17;J.  "  lliiii. 

**   ('o(»l»--,     .OS'J.      Sec     l.iiiuamir     r.  "  Hiiscdiiiln' i'.  Hare. 'J  I{li:'li,  N.  S.  1 '.lt». 
Kvom,  4  IJcav.  158. 


CH.  I.]  THE   LAW   OF  MORTGAGES.  9 

the  mortgage  which  bound  both  estates,  but  Y^^ich,  in  fact, 
was  not  sufficient.  The  Court  directed  the  balance  due  on 
the  mortgage,  to  be  paid  out  of  the  proceeds  of  the  sale  of 
her  real  estate.  Held,  she  was  entitled  to  recover  from  the 
purchasers  of  his  estate  the  amount  of  such  balance. ^ 

19  b.  Previously  to  a  marriage  then  in  contemplation,  the 
intended  husband,  by  his  agent,  paid  off  two  equitable  mort- 
gage debts  of  the  intended  wife,  secured  by  a  deposit  of  title- 
deeds  belonging  to  her.  He  did  this,  apparently,  to  save  the 
expense  of  a  legal  mortgage,  which  would  otherwise  have 
been  required  by  the  mortgagees.  The  title  deeds  still  re- 
mained in  their  custody.  The  marriage  was  solemnized, 
and  there  was  no  settlement,  or  agreement  for  one.  There 
was  no  issue,  the  husband  died  before  the  wife,  intes- 
tate, and  she  took  out  administration.  Held,  he  did  not 
intend  to  make  a  gift  to  her  of  the  money  which  he  had 
paid  for  her,  and  that  the  debt  still  existed  on  the  security  of 
the  equitable  mortgage  in  favor  of  his  personal  estate.^ 

19  c.  Where  a  manied  woman,  a  cestui  que  trust,  by  the 
deed  of  trust,  is  given  full  power  of  disposition  of  the  estate 
after  the  death  of  her  husband,  and  the  same  power  during 
his  life  with  his  assent,  a  mortgage  executed  by  the  husband 
and  wife  is  a  good  execution  of  the  power,  and  conveys  the 
estate.^ 

19  (/.  "Where  a  wife  joined  with  her  husband  in  the  mort- 
gage of  lands,  to  which  she  had  title  in  her  own  right,  for 
the  consideration  that  other  lands  should  be  conveyed  to  a 
trustee  for  her  benefit ;  held,  the  trust  so  created  was  sup- 
ported by  a  good  consideration.* 

19  e.  Where  a  trustee  purchased  property,  mortgaged  for 
the  benefit  of  certain  cestui  que  trusts,  among  whom  was  the 
wife  of  the  mortgagor,  and  they  paid  the  mortgage  debt ; 
held,  though  the  mortgagee  did  not  convey  the  title  to  the 
trustee,  he  held  it  for  the  benefit  of  the  cestui  que  trust.^ 

1  Shciillc  V.  Weishlee,  4  Harris,  134.         ^  Campbell  i-.  Low,  9  Barb.  585. 
-  Gooch  V.  Goocli,  8  Eng.  Law  &  Efj.     *  Hunt  r.  Diipuv,  11  B.  Mon.  282. 
141.  5  Ibid. 


10  THE   LAW   OF   MORTGAGES.  [CH.  I. 

19/.  Billon  equity  by  husband  and  wife  to  redeem  land 
mortgaged  by  tlicm.  The  defendant  produced  a  paper,  found 
among  tlic  papers  of  a  deceased  subscribing  witness,  signed 
and  sealed  by  the  mortgagee  and  the  husband,  and  reciting 
that  the  mortgagee  had  taken  possession  to  foreclose,  and 
leased  to  the  husband  for  a  certain  rent.  Held,  the  mortgage 
was  not  foreclosed.  The  Court  say,  "  It  was  the  wife's  estate, 
and  there  is  no  evidence  that  she  consented  to  or  had  knowl- 
edge of  the  supposed  entry.  In  equity,  she  would  be  let  in 
to  redeem,  care  being  taken  that  the  right  of  the  husband 
should  be  transferred  to  the  mortgagee.  There  is  no  evi- 
dence of  an  entry  or  actual  possession  by  the  mortgagee. 
It  does  not  appear  whether  this  paper  is  an  escrow  or  not. 
It  can  be  evidence  only  by  way  of  estoppel  to  the  husband, 
and  does  not  bind  the  wife.  The  transaction  must  be  con- 
sidered as  an  attempt  to  create  a  foreclosure  privately,  and 
without  the  knowledge  of  the  wife.  On  that  ground  it  is 
bad  in  equity ;  and  it  is  bad  in  law  for  want  of  evidence  of  a 
delivery  of  the  paper."  ^ 

19  g".  Mortgage  by  husband  and  wife  of  her  land.  The 
equity  of  redemption  was  sold  on  an  execution  against  him. 
After  his  deathj  she  brings  a  bill  in  equity  to  redeem  against 
the  execution  purchaser,  who  had  also  taken  an  assignment 
of  the  mortgage,  and  entered  under  a  writ  of  possession. 
IL'ld,  she  might  redeem  on  j)ayment  of  the  mortgage  debt 
only.  Wilde,  J.,  says,  "  If  a  widow  be  dowable  of  an  equity, 
she  is  entitled  to  redeem  ;  and  if  she  has  this  right  in  the 
estate  of  her  husband,  it  would  b(^  a  strange  anomaly  if  sh(^ 
had  not  as  much  right  in  her  own  inheritance.  The  ecjuiiy 
is  inherent  in  ihe  land,  and  us  the  estate  was  held  helore  thi" 
mortgage,  so  is  the  e(pnty  after,  if  there  is  a  legal  perform- 
ance of  th(!  condition,  the  estate  revests  without  the  nid  (if  a 
court  of  ecjuity;  and  il  there  is  an  e(piital)lt^  pei  rormmice,  the 
court  will  (leen.'e  a  restoration  of  the  estate;  and  in  neither 
case  does   the   hu.-band   aeipiire    any   new   right  ;    nor  can   a 

'  lla-llcv  r.  II.(u;;lit<)ii,  7  Tiik   li'J. 


CH.  I.]  THE   LAW    OF    MORTGAGES.  11 

creditor  of  the  husband,  by  attaching,  &c.,  acquire  any  gi'eater 
right  than  the  husband  had  before  the  sale."  He  proceeds 
to  remark,  that  even  the  English  doctrine  of  tacking  would 
not  apply  to  the  case  of  husband  and  wife.^ 

19  h.  Conveyance  to  a  trustee  for  the  use  of  a  wife  and 
her  children,  she  giving  her  notes  for  the  price,  and  the  trus- 
tee a  mortgage  to  secure  them,  reciting  that  they  were  so 
made.  Held,  all  the  instruments  constituted  one  transaction, 
in  which  all  the  parties  joined.^ 

19  i.  An  infant  may  be  a  mortgagee.  Whether  he  is  the 
original  gi-antee,  or  takes  by  descent,  he  is  bound  by  the  con- 
ditions of  the  deed.  The  mortgage  must  be  good  in  the 
whole  or  void  in  the  whole.^ 

20.  The  mortgage  of  an  infant  is  not  void,  but  only  void- 
able. Hence,  where  an  infant  mortgaged  his  land,  and  after 
coming  of  age  made  an  absolute  conveyanceipf  it,  recogni- 
zing, and  subject  to,  the  mortgage ;  the  latter  deed  was  held 
to  be  a  confirmation  of  the  former  one,  and  the  mortgagee  re- 
covered judgment  for  the  land  against  the  second  grantee.*  (A) 

1  Peabody  v.  Patten,  2  Pick.  517,  519,  520.        *  President,  &c.  i-.  Chamberlin,  15 

2  Howard  v.  Davis,  6  Tex.  174.  Mass.  220.     See  Loomcr  v.  Wliecl- 

3  Parker  v.  Lincoln,  12  Mass.  17,  18.  wright,  3  Sandf.  Chan.  135. 


(Ji)  A  minor  entered  Into  copartnership  with  a  person  of"  full  age,  bring- 
ing money  into  the  concern.  During'  his  minority,  the  partnership  was  dis- 
solved ;  the  minor  sold  out  to  the  other  partner,  who  received  and  retained 
exclusive  possession  of  the  property,  and  afterwards  mortgaged  it  (o  the 
minor  to  secure  a  note  given  in  consideration  of  the  sale.  The  mortgagor 
afterwards  becoming  insolvent,  the  mortgagee  made  application  to  the  mas- 
ter in  chancery  for  a  sale  of  the  property  under  the  statute.  Held,  the 
application  should  be  granted.  Shaw,  Ch.  J.,  says :  "  The  validitj'  of  the 
sale  to  the  insolvent  did  not  depend  wholly  upon  his  (the  minor's)  ability  and 
legal  capacity  to  execute  a  bill  of  sale  under  seal ;  but  it  took  effect  from 
the  delivery  of  the  goods,  and  his  title  thereto  has  never  been  drawn  in 
question.  None  of  the  contracts  and  stipulations  entered  into  by  him  have 
been  avoided  on  the  ground  of  infancy,  and  neither  the  insolvent  nor  his 
creditors  have  reason  to  complain  of  the  plaintilT  on  that  score."  Barnard 
V.  Eaton,  2  Cush.  294,  302. 


ll!  THE    LAW    OF   MORTGAGES.  [CH.  I. 

21.  If  an  estate  descend  to  an  infant  subject  to  incum- 
brances, the  guardian,  without  direction  of  the  court  of 
equity,  may  apply  the  profits  to  discharge  them ;  namely,  to 
pay  the  interest  of  any  real  incumbrance,  and  the  principal 
of  a  mortgage,  because  that  is  a  direct  and  inunediate  charge 
upon  the  land  ;  but  not  the  j)rineipal  o(  any  oilier  real  incum- 
brance.i 

22.  A  Joint  tenant  may  mortgage  his  undivided  interest. 
So  a  tenant  in  common,  or  partner.(/)      The  mortgage  will 

1  1  I'ow.  284,  a. 

(i)  The  following  case  illustrates  the  rights  of  partners  and  their  joint 
creditors,  in  case  of  a  mortgage  made  by  one  of  them  for  his  private  debt. 
Two  partners  took  a  lease  of  a  building  and  water-power,  and  put  machinery 
into  the  building  for  the  purpose  of  carrying  on  their  joint  business.  One 
of  them  afterwards  mortgaged  his  interest  for  his  private  debt,  but  the  part- 
ners remained  in  possession  and  use  of  the  property.  A  bill  was  subsequently 
filed  for  foreclosure  of  the  mortgage,  and  a  sale  of  the  mortgagor's  interest, 
to  which  the  lessor  was  made  party,  the  firm  being  indebted  to  him  for 
rent.  Held,  the  mortgagee  could  claim  only  what  remained  of  the  mort- 
gagor's interest,  after  paying  the  firm  debts,  the  rent  included.  Receivers, 
&c.  r.  Godwin,  1  Ilalst.  Cha.  Snt.     See  Mosely  r.  Garrett,  J.  J.  Mar.  212. 

A.  and  B.,  partners  and  tenants  in  common  of  lands,  dissolved  their  part- 
nership, agreeing  that  B.  should  take  all  the  partnership  property,  including 
the  lands,  and  pay  the  debts.  A.  conveyed  his  share  to  B.,  but  the  deed 
was  not  recorded  in  the  town  where  a  part  of  the  lands  was  situated.  B. 
mortgaged  to  A.  all  the  partnership  lands,  to  secure  him  against  liability  for 
debts  of  the  firm,  and  also  mortgaged  the  part  above  mentioned  to  C.  to 
secure  a  debt  due  him  from  the  firm,  specified  in  B.'s  mortgage  to  A.  A.  and 
B.  afterwards  conveyed  the  said  part  to  a  stranger.  Held,  (hat  the  stranger 
might  hold  A.'s  moiety  against  C,  but  that  C.  was  entitled  to  a  decree  of 
foreclosure  on  the  other  moiety,  as  against  A.  and  B.,  notwitlistanding  the 
proir  mortgage  from  B.  to  A.     Frothingham  v.  Shephard,  1  Aik.  Co. 

Where  a  partner  gives  a  mortgage  upon  his  separatt;  j)ropcrty,  to  secure 
ft  partnership  drljt,  he  thereby  becomes  a  surely  for  the  firm,  anil  is  entitled 
to  the  rights  and  privileges  of  that  character ;  and  his  .separate  creditors 
succeed  thereto,  and  have  a  right  to  insist  that  the  jiartnership  proj)erty  be 
first  ajiplied  towards  the  debt,  before  resort  is  liad  to  the  separate  estate  of 
tlie  surety  ;  and  if  tin-  latter  is  fir.it  applied,  liis  separate  creditors  will  lie 
entitled  to  be  subrogated  to  the  ri;:lits  of  the  creditor  as  against  tlie  partner- 
hliip  fund,      .\vcrill  v.  Lfjinks,  tj  Barl).  -ITO. 


en.  I.]  THE   LAW   OF   MORTGAGES.  13 

operate  as  a  severance  of  the  joint  tenancy,  if  in  fee ;  if  for 
years,  a  severance  j)ro  tanto} 

22  a.  Wliere  land  is  held  in  common,  a  mortgage  from 
one  owner  for  his  proportion  of  a  debt  secured  by  mortgage 
of  the  whole,  is  a  continuation  of  the  original  lien.^ 

22  b.  One  taking  a  mortgage  from  a  tenant  in  common 
is  not  bound  by  a  partition  between  the  latter  and  the  other 
tenants,  upon  the  petition  of  such  other  tenants,  to  which 
the  mortgagee  was  not  made  party,  unless  he  confirms  the 
partition.  The  mortgagor,  in  such  case,  being  allowed  to 
remain  in  possession  by  the  mortgagee,  may  occupy  either 
in  common  with  the  co-tenants  or  in  severalty.  Hence,  not- 
withstanding his  sole  occupation,  the  mortgagee  may  main- 
tain a  petition  for  partition,  not  being  disseized  thereby.^ 

22  c.  Where,  pending  proceedings  for  partition,  a  tenant 
in  common  mortgages  his  undivided  share,  and  there  is  an 
actual  partition,  the  mortgage  will  attach  to  the  portion  set 
off  to  him."^ 

1  1  Pow.  18,  and  n.  3  Colton  v.  Smith,  1 1  Pick.  311. 

-  Lee  V.  Porter,  5  Johns.  Ch.  268.  See  *  Westervelt  v.  HiifF,  2  Sandf.  Ch.  98 ; 
Roswell  V.  Siinonton,  2  Cart.  516.  Jackson  v.  Pierce,  10  Johns.  414. 


By  the  articles  of  copartnership  of  a  private  banking  association,  each 
partner  was  to  give  a  mortgage  to  the  partnership,  to  secure  the  pajment  of 
his  stock.  Mortgages  were  executed,  and  recited,  that  they  were  to  secure 
the  bonds  for  the  payment  of  the  stock  in  five,  ten,  and  fifteen  j-ears,  and  for 
the  purpose  of  "binding  and  rendering  himself  liable  to  pay  the"  partner- 
ship debts ;  and  in  the  condition  of  the  mortgages  it  was  recited,  that  the 
mortgage  should  be  discharged  when  the  liabilities  of  the  partnership  were 
all  paid.  Held,  one  of  the  objects  of  the  mortgages  was  to  secure  the  debts 
of  the  partnership,  and  a  creditor  of  the  partnership,  holding  a  mortgage, 
might  foreclose  the  same  on  account  of  such  partnership  indebtedness, 
although  the  first  instalment  on  the  bond  for  the  payment  of  his  stock  by 
the  mortgagor  had  not  become  due.    Boisgerard  v.  Wall,  1  S.  &  M.  Ch.  404. 

Upon  a  dissolution  of  partnership  between  A.  and  B.,  A.  agreed  to  pay  a 
partnership  debt,  secured  by  mortgage  of  B.'s  land.  B.  afterwards  mort- 
gaged the  land  to  C.  Held,  C.  became  entitled  to  the  benefit  of  B.'s  equity, 
to  compel  A.  to  discharge  the  prior  mortgage.  Kinney  v.  !McCuIlough, 
1  Sandf.  Ch.  370. 

VOL.   I.  2 


14  THE   LAW    OF   MORTGAGES.  [CH.  I. 

'2'2  (I.  And  if.  instead  of  partition,  the  premises  are  sold, 
and  a  part  of  them  purchased  by  the  mortgagor,  who  is  to 
pay  a  certain  amount  to  the  other  tenants,  the  mortgage  will 
attach  as  a  lien  to  the  land  so  purchased.^ 

23.  If  the  mortgagor  have  a  larger  interest  than  was  cov- 
ered by  the  mortgage,  and  the  whole  be  set  off  together  in 
severalty,  the  lien  of  the  mortgagee  will  attach,  as  tenant 
in  common,  to  the  whole  land  set  off,  in  the  proportion  that 
the  quantity  mortgaged  bears  to  the  whole  land  set  ofll".^ 

24.  It  has  already  been  stated,  that  a  mortgage  is  a  deed 
made  upon  a  condition,  which  condition  appears  by  the  deed 
itse*lf.  It  was  the  early  doctrine  of  the  law,  that  if  the  de- 
feasance or  condition  was  contained  in  a  deed  executed  after 
the  feoffment,  it  came  too  late ;  because,  livery  of  seizin  or 
corporal  tradition  being  necessary  at  common  law  to  all  con- 
veyances of  land,  no  mortgage  thereof  was  valid,  unless  pos- 
session also  was  delivered  to  the  mortgagee,  and  the  livery 
coram  jniribus  in  such  case  attesting  an  infeudation,  in  which 
there  was  no  condition,  the  tenant  must  hold  the  land  accord- 
ing to  that  investiture."  (J) 

20.  At  common  law,  a  distinction  was  made  between  a 
mortgage  made  to  secure  a  sum  of  money  as  a  mere  gift, 
and  one  made  to  secure  a  pre\'ious  debt.  In  the  former  case, 
a  tender  within  the  time  discharged  the  estate,  and  gave  the 
mortgagor  a  right  of  entry,  and  the  mortgagee,  having  no 
furihcr  lien  upon  llic  land,  nor  any  personal  right  of  action, 
was  left  without  remedy  for  his  money.  But  in  the  latter 
ca.se,  though  such  tender  discharged  tlx;  land,  yet  the  debt 

1  Wcsicrvelt  v.   IImIV.  2  San<lf.  Cli.  U.         -  Himilcll  r.  MalK^tt,  1>  Sliri.I.  'A. 

08.  ■'  1  rt>w.  f). 


(j)  I?y  the  feudal  law,  tlic  niortj»a;To,  as  well  as  absolute  alienation  of  laml, 
rcfiuirod  tlic  consent  of  the  lord.  (Ilanville  says, — "Null!  lieeal  iViiduni 
vcndcrc  vcl  pignorarc  sine  permission e  iliius  doniini."  The  maxim  of  tlie 
feudal  law  was,  —  "  Feiidalia,  invito  domino,  auf  a;^natis,  non  reete  ^^ullji<•i- 
untur  liypolliecf,  rjuamvis  fruetus  posse  esse,  recei)tum  est."  Tend.  lib.  2, 
tit.  f>') ;  J5af.  Abr.  Murlijai/r,  A. 


CH.  I.]  THE   LAW   OF  MORTGAGES.  15 

remained,  and  might  be  recovered  by  action  ;  for  it  was  a 
duty,  distinct  from  the  condition,  and  therefore  not  lost  by 
the  tender  and  refusal.^ 

26.  In  the  performance  of  conditions,  a  distinction  is  made 
between  those  which  are  to  create,  and  those  which  are  to 
destroy,  an  estate ;  for  the  former  may  be  performed,  by  con- 
struction of  law,  as  near  the  condition  as  may  be,  according 
to  the  intent ;  but  the  latter  are  to  be  strictly  construed, 
unless  in  special  cases.  The  conditions  of  mortgages  were 
classed  under  the  former  of  these  heads ;  for  though,  by  per- 
formance, the  estate  was  to  be  divested  out  of  the  mortgagee, 
yet  it  was  with  intent  to  reinstate  the  mortgagor  in  his  inher- 
itance.2 

27.  The  doctrine,  as  to  tender  of  performance  of  the  con- 
dition of  a  mortgage,  is  stated  by  the  court  in  New  Hamp- 
shire as  follows  ;  showing  that  the  ancient  law  was  as  rigid 
in  protecting  the  rights  of  the  mortgagor,  where  he  was  guilty 
of  no  neglect,  as  in  decreeing  an  absolute  forfeiture  of  his 
estate,  for  the  slightest  non-compliance  with  the  condition  of 
the  mortgage. 

28.  "  At  common  law,  when  lands  were  granted  upon  con- 
dition that  the  conveyance  should  be  void  upon  the  payment 
of  a  certain  sum  at  a  particular  time  by  the  grantor ;  if  he 
paid  the  money,  or  made  a  legal  tender  of  it,  at  the  day,  he 
immediately  acquired  a  right  of  entry,  and  the  land  was  for- 
ever discharged  from  the  incumbrance.  ^  Coke,  in  his  com- 
mentary upon  this  section  of  Littleton,  says,  that  '  this  is  to  be 
understood,  that  he  that  ought  to  tender  the  money  is  of  this 
discharged  forever  to  make  any  other  tender ;  but  if  it  were 
a  duty  before,  though  the  feoffer  enter  by  force  of  the  con- 
dition, yet  the  debt  or  duty  remaineth ; '  '  as  if  A.  borrowed 
of  B.  £100,  and  after  mortgageth  land  to  B.  upon  condition 
for  payment  thereof,  if  A.  tender  the  money  to  B.  and  B. 
refuseth  it,  A.  may  enter  into  the  land,  and  the  land  is  freed 

1  1  Pow.  5,  6;  Co.  Lit.  219.  i;  Coote,     206,  rt ;  213,  a  ;  221,  b ;   Wyatt's   case, 
47.  Cro.  Car.  427.     • 

-  1  Tow.  G  ;  Co.  Lit.  219,  I ;  205,  a  ;         '■^  Lit.  338. 


16  THE   LAW   OF   MORTGAGES.  [ciI.  I. 

forever  of  the  condition,  lint  yet  the  debt  remaineth  and  may 
be  recovered  by  action  of  debt.'  And  the  law  is  without 
doubt  the  same  here  at  this  day.  If  the  condition  of  a  mort- 
gage is  performed  at  the  day,  or  if  a  legal  tender  is  made 
and  refused,  the  land  is  forever  discharged  from  the  incum- 
brance. And  at  common  law,  if  the  mortgagor  neglected  to 
pay  at  the  day,  tlie  estate  of  the  mortgagee  became  absolute, 
and  the  land  was  gone  forever."^  (k) 

29.  If  time  and  place  of  payment  were  fixed,  tender  must 
be  made  accordingly ;  if  no  place  were  fixed,  the  money  be- 
ing a  sum  in  gross,  and  collateral  to  the  title  of  the  land,  the 
mortgagor  was  bound  to  seek  the  mortgagee  and  tender  the 
money  personally,  if  within  the  realm,  and  it  was  not  suffi- 
cient to  tender  it  on  the  land.  If  a  place  were  named,  it 
seems,  a  notice  of  readiness  there  would  be  sufficient.  So, 
attendance  at  the  mortgagee's  house,  in  case  of  previous 
notice.  If  no  time  were  appointed,  the  mortgagor  had  his 
whole  life  for  payment  of  the  money,  but  his  heirs  could  not 
pay  it,  unless  expressly  mentioned.  If  a  time  were  fixed, 
though  the  condition  mentioned  only  the  mortgagor  himself, 
his  heir,  executor,  administrator,  or  the  guardian  of  the  heir, 

'  Per    liiclinnl-on,  C!i.   .J.     Swett  r.  ton.  4  Bil>l).  451  ;  Kiiij;  c.  Tlu- Stato.  &c. 

Horn,  1   \.  If.   332,   333.     Darlin-,'  v.  7  Cusli.  7.     Sec  Merritt  v.  Lambert,  7 

Cliupman,  14  Mass.  104  ;  Hill  ;■.  Uot.ert-  rait,^',  344. 
son,  24  Mis.s.  368;  Blancliard  v.  Keii- 


(L)  "But  if  the  money  is  not  [y.ud  by  tlie  day,  llic  condition  on  wliicli  tlie 
land  was  to  revert  to  the  n>ort<j;aj;or  lias  not  licen  complied  witii,  and  the 
interest  of  the  mortgaj^or  in  the  land  is  then  reduced  to  a  mere  C(iuity  of 
redemption ;  and  an  actual  payment,  not  a  mere  tender,  then  becomes  nec- 
essary to  disehar;^c  the  legal  and  equitable  lien  of  the  mortgagee  upon  the 
land."  1  X.  II.  :}.'}3.  In  New  York  it  has  been  held,  that  the  lien  of  a 
mortgage  will  be  extinguished  by  a  tender  hrfarc /tmclosure ;  and  the  mort- 
gagee, if  in  possession,  may  be  ejected  therefrom.  Hut  the  mortgagor  must 
pay  costs,  if  the  tender  was  not  made  till  after  the  day  fi.xed  for  i)ayment. 
Kdwanis  v.  Ins.  Co.  21  Wend.  407;  20  Ibid.  r,\\;  .\rnot  v.  Tost,  G  Hill,  05 
Hut  ill  Maine,  a  tenihr  of  the  nmoiint  of  a  note  seriireil  by  mortgage,  maih; 
long  after  the  maturijj,*  of  the  note,  does  not  discharge  the  mortgage.  .Smith 
V.  Kclley,  27  Maine,  2:)7.     See  Kilger  r.  I'aikcr,  «  Cusli.  M'J. 


en.  I.]  THE   LAW   OF   MORTGAGES.  IT 

might  tender  the  money  and  save  the  condition.  K  the 
words  of  the  condition  were  for  payment  to  the  feoffee  or  his 
heirs,  the  money  could  not  be  paid  to  the  executor  or  assigns  ; 
if  to  "  heirs  or  assigns,"  and  the  mortgage  was  transferred,  it 
might  be  paid  either  to  the  fnst  or  second  feoffee ;  or,  if  the 
first  feoffee  was  dead,  to  his  heirs,  but  not  his  executors ;  if 
to  "  heirs,  executors,  or  assigns,"  it  might  be  paid  to  either.^ 

30.  If  an  account  was  stated  between  the  parties,  and  the 
balance  paid,  or  a  new  security  taken  by  bond  or  statute, 
it  was  a  good  performance.  If  the  mortgagee,  before  any 
transfer,  received  the  money,  and  returned  the  whole  or  a 
part,  this  was  a  good  performance ;  but  if  the  condition  was 
for  payment  to  the  feoffee,  his  heirs  or  assigns,  and  the  feoffee 
transferred  the  mortgage  and  died,  and  the  mortgagor  paid 
the  money  to  the  heir  of  the  first  mortgagee,  who  returned  a 
part  of  it ;  this  was  held  not  sufficient  to  divest  the  title  of 
the  assignee.- 

31.  Substantially  the  same  principles,  relating  to  the  effect 
of  the  breach  of  condition  in  a  mortgage,  are  still  in  force,  so 
far  as  the  jurisdiction  of  courts  of  laiv  is  concerned.  Thus, 
it  has  been  stated  in  Massachusetts,  that  a  mortgage,  although 
a  pledge  at  first,  becomes  an  absolute  interest,  unless  redeemed 
at  the  time  limited  for  the  payment  of  the  money,  or  other 
performance  of  the  condition.  If  it  be  not  literally  performed, 
by  payment  of  the  money  at  the  day,  the  estate  becomes 
subject  to  the  dower  of  the  wife  of  the  mortgagee,  and  to  all 
other  incumbrances  by  him ;  although  the  money  should  be 
afterwards  paid,  and  the  estate  reconveyed  to  the  mortgagor.-^ 

32.  Upon  these  principles,  as  has  been  stated,  the  wife  of  a 
mortgagee  in  fee  of  a  forfeited  mortgage  is  entitled  to  dower.^ 
But  if  she  were  to  prosecute  her  claim,  a  court  of  equity 
would  undoubtedly  interpose  and  saddle  her  with  all  the 
expenses.^ 

1  Coote,  45,  513.  See    Montgomery   v.  Bruere,  1   South. 

2  Coote,  47.  See  Ilanner  v.  Priestley,  2G7  ;  Lull  i-.  i^Luthcws,  19  Verm.  o22. 
21  Eng.  Law  &  Eq.  490.                         '  *  Hard.  466  :  Co.  Lit.  221,  a. 

3  Per  Wilde,  J.  Par.>ons  v.  Welles,  &  Nash  v.  Preston,  Cro.  Car.  190; 
17    Mass.    421;  Pow.  on  Mort.   9,   10.  Noel  v.  Jcvon,  2  Frecm.  43 ;  Bcvant  r. 

2* 


18  THE   LAW    OF   MORTGAGES.  [CH.  I. 

33.  Bat  it  has  been  held,  that  there  is  no  curtesy  to  the 
husband  of  a  mortgagee,  unless  there  has  been  a  foreclosure, 
or  redemption  is  barred  by  lapse  of  time.^ 

34.  Mr.  Coventry,  the  learned  annotator  of  Powell  on 
Mortgages,  remarks,^  that  many  modern  conveyancers  have 
substituted  for  the  usual  condition  of  a  mortgage,  an  agree- 
ment by  the  mortgagee  to  rcconvci/,  on  payment  of  the  debt. 
The  advantage  of  a  condition  is,  that,  upon  performance  of 
it,  the  estate  ipso  facto  revests  in  the  mortgagor,  without  the 
necessity,  as  in  the  other  case,  of  a  reconveyance ;  while  it 
is  also  attended  with  the  disadvantage,  that  in  case  of  an 
assignment  of  the  mortgage,  payment  to  the  mortgagee  him- 
self might  revest  the  title  in  the  mortgagor,  and  thus  a  wrong 
be  done  to  the  assignee.  He  proceeds  to  remark,  however, 
that  this  inconvenience  is  rather  imaginary  than  real,  because 
no  debtor  would  be  likely  to  pay  a  mortgage  without  having 
it  delivered  up  to  him.^  It  is  said,  that  if  the  condition  be 
for  a  reconveyance,  it  can  be  fulfilled  only  by  such  reconvey- 
ance.* 

34  a.  Conveyance  Ijy  a  deed  absolute  upon  its  face,  to 
secure  a  debt  due  from  another  person,  with  an  agreement 
by  the  creditor,  to  convey  to  the  debtor,  upon  payment  of  the 
debt.     Held,  these  two  instruments  constituted  a  mortgage."^ 

35.  The  precise  form  in  which  the  condition  is  expressed, 
or  the  name  given  to  the  transaction  by  the  jiarties,  is  im- 
material, more  especially  in  e([uity,  })rovJcl('d  the  substance 
distinctly  appears.  Thus  a  deed,  made  in  terms  to  secure 
certain  debts  recited  therein,  is  a  nu)rlgage.''' f/) 

rojiC,  ill.  71.    See  iiifiu;  /Juicr  in  JCijiti-         "  Skinner  c.  C"ox,4  Dev,  59;  liiildwin 

ti'H  of  /iiilrinjition.  r.  .Jenkins,  '2.T    Miss.   '20G\  Cotunil    v. 

'  Ciisliorii  V.  Inj^lisli,  7  Vin.  157.  Lon;:,  '20  Ohio,  404;  Koliinson  r.  Far- 

=*  1  l'<iw.  9,n.  H.     See  Charles  u.  Clag-  reiiv,   Ki   Ala.  472:   lu.-an   v.  Walker, 

ett,  .3  M<1.  82.  2    Ohan.l.    (Wis.)    13.};    Woodwoith   i'. 

"  Sec  I're.st.  Conv.  200.  (In/.nian,  1  ("al.  2o;i ;  t'hownint;  i'.  Cox, 

*  Coote,  48.  1  Kan<l.  30G. 

'•  Weed  V.  Stevenson,  1  Clark,  IfiG. 


(/)  But,  as  to  tho  (lifllinction  between  a  deed  of  trust  for  sccuiiiy  or  |»;iy- 
mcnt  of  «lebtM,  with  a  j)0wcr  of  sale,  and  a  condilional  deed  or  mortgage, 


CII.  I.  ]  TBE   LAW    OF   MORTGAGES.  19 

36.  A  deed  contained  the  following  clause  :  "  Provided  the 
grantor  shall  pay  off  certain  legacies  bequeathed  by  the  last 
will  of  J.,  which  legacies  are  a  charge  upon  the  land  herein 
described,  then  these  presents  shall. cease."  Held  a  mort- 
gage.i 

37.  In  Palmer  v.  Gurnsey,^  the  defendant,  being  indebted 
to  the  wife  of  the  })laintiff,  executed  to  the  plaintiff  a  deed  in 
fee  of  certain  lands  ;  and  the  plaintiff,  by  a  separate  instru- 
ment, after  reciting  the  conveyance,  agreed,  that  if  the  land 
should  sell  for  more  than  enough  to  pay  off  certain  incum- 
brances,  and   the    consideration    mentioned  in  the  deed  — 

1  Stewart  v.  Ilutchins,  6  Hill,  143.  27  Wcnd.  248. 


see  infra,  eh.  7,  §§  3-11 ;  Best  v.  Carter,  19  Eng.  Law  &  Eq.  5G  ;  Bennett  v. 
Union,  &c.  5  Ilnmph.  G12;  Beckley  v.  Munson,  22  Conn.  290.  As  to  the 
distinction  between  a  mortgage  and  a  mere  executory  contract,  see  Coles  v. 
Pei'ry,  7  Te-x.  109.  No  precise  form  of  words  is  necessary  to  constitute  a 
mortgage ;  and  Avhere  the  evident  intent  of  the  parties  to  a  written  instru- 
ment, was  to  make  it  a  mortgage  upon  land,  it  will  be  so  enforced  in  equity. 
Baldwin  v.  Jenkins,  23  Miss.  (1  Cush.)  206.  A  covenant,  by  a  debtor,  to 
execute  to  his  creditor  a  mortgage  upon  the  debtor's  share  under  his  father's 
will,  whenever  a  division  should  have  been  made,  was  held  to  be  a  mortgage. 
Lynch  v.  Utica,  &c.  18  Wend.  236.  Conveyance  by  A.  to  B.  by  absolute 
deed.  B.  gave  back  a  written  contract,  promising  to  sell  the  land  at  a  cer- 
tain time,  pay  two  notes  with  the  proceeds,  and  the  balance  to  A.  Held, 
that  B.  held  the  land  in  trust,  and  it  was  his  duly  to  make  sale  at  the  time 
specified,  and  appropriate  the  proceeds  in  the  manner  stated ;  that  C,  who 
was  a  surety  on  one  of  the  notes,  although  he  might  not  have  known  of  the 
trust  when  it  was  undertakeif,  Avas  yet  entitled  to  enforce  its  execution, 
when  he  was  informed  of  it,  if  it  had  not  been  previously  annulled ;  and 
that,  if  there  was  a  mortgage  upon  the  estate  not  mentioned  in  the  contract, 
but  known  to  B.  at  the  time  of  its  execution,  he  might  pay  it  off,  and  deduct 
the  amount  from  the  proceeds  of  the  sale.  Pratt  r.  Thornton,  28  INIaine, 
355.  A  deed  of  land  provided,  that  if  the  grantor  can  within  a  certain  time 
"dispose  of  the  land  conveyed  to  better  advantage,"  he  may  do  so,  paying 
to  the  grantee  the  "  consideration  money  "  mentioned  in  the  deed.  Held, 
not  a  mortgage.  Stratton  v.  Sabin,  9  Ham.  28.  A  judgment  debtor  con- 
veyed to  a  trustee,  authorizing  him,  if  the  judgment  were  not  paid  in  a  cer- 
tain time,  to  sell  the  land.  Held,  a  mortgage.  Comstock  v.  Stewart,  "Walk. 
Ch.  110. 


•20  THE   LAW   OF  MORTGAGES.  [CH.  I. 

which  was  the  amount  of  the  plaintiff's  debt  —  and  the  trou- 
ble the  plaintiff  t^hould  be  put  to ;  he  would  pay  back  to  the 
defendant  all  the  overplus.  Held,  the  two  instruments  to- 
gether constituted  a  mortgage.  Savage,  Ch.  J.,  said,  —  "  It 
is  true,  there  was  no  right  of  redemption  of  the  land  itself 
that  was  to  be  sold ;  but  the  avails  were  to  belong  to  the 
grantor,  after  paying  all  incumbrances  and  expenses."  He 
added,  that  the  agreement  to  return  the  overplus  money 
"  clearly  shows  that  it  was  not  the  intention  of  the  grantor 
to  part  with  any  more  of  his  interest  in  the  premises  con- 
veyed, than  suflicient  to  satisfy  the  mortgages,  and  the 
amount  due  the  plaintiff." 

3S.  In  Cooper  v.  Whitney,'  Morse,  being  indebted  in  the 
amount  of  the  three  mortgages  to  St.  John,  Luquire,  and 
Burlcw,  conveyed  in  fee  to  Burlew,  who  by  a  separate  instru- 
ment executed  at  the  same  time,  agreed  that,  if  he  could  sell 
the  premises  within  a  reasonable  time  for  more  than  enough 
to  satisfy  the  three  debts  and  liis  expenses,  he  would  pay  llie 
excess  to  INIorse.  It  was  held,  that  although  the  transaction 
was  not  in  the  most  usual  form  of  a  mortgage,  it  had  all  the 
essential  qualities  of  a  mortgage,  except  the  absence  of  an 
express  condition,  that  the  deed  should  become  void  on  pay- 
ment of  the  debts  which  it  was  made  to  secure  ;  that  with- 
out sucli  condition,  Morse  might  Jiot  perha})s  be  allowed  to 
redeem,  and  that  there  was  some  dilliculty  in  treating  the 
conveyance  as  a  technical  mortgage,  it  being  rather  a  trust ; 
but  the  case  turned  on  other  j)()iiiis,  and  this  (piestion  re- 
mained undecided. 

IJ9.  To  avoid  the  ineoiivenienee  and  injustice  tc^  which  the 
mortgagor  miglit  be  exposed  l)y  an  absolute  forfeiture,  it  has 
been  usual  in  I'higland  to  substitute  mortgages  for  a  long 
term  of  years  for  UK^rtgages  in  fee.(///)    And  this  practice  ])re- 

1  .•{  Hill, '.).-). 


(m)  In  MJBdOuri,  mortgages  of  K-ascIioidH  lor  nunc  ili.in  twenty  years  arc 
treated  like  mortgages  of  estates  in  ft c     Misso.  Si.  I  Mi.     In   Arkansis,  ilic 


en.  I.]  *       THE   LAW   OF   MORTGAGES.  21 

vailed  very  generally,  until  the  courts  of  equity  interfered  for 
the  redemption  of  mortgages  in  fee,  upon  the  principles  here- 
after stated. 


mortgagee  of  a  leasehold  may  obtain  possession  of  the  premises  after  the 
lessee  has  been  ejected,  by  payment  of  the  debt.  Ark.  L.  680.  Mr.  Coote 
says,  in  some  instances  the  mortgage  used  to  be  effected  by  a  demise  and 
redemise ;  that  is,  the  mortgagor  demised  the  land  to  the  mortgagee  for  a  long 
term  of  years  at  a  peppercorn  rent,  and  then  the  mortgagee  redemised  them 
at  a  pecuniary  rent,  ■which  covered  the  interest  of  the  money  lent;  and  there 
was  a  condition  in  the  original  demise,  that,  on  payment  of  the  mortgage 
debt  and  interest  by  a  given  day,  the  original  term  should  be  at  an  end ; 
upon  which  the  derivative  term  would  also  cease.  Coote,  156,  157.  Where 
an  assignee  of  a  term  of  years,  having  no  other  right  or  interest  in  the  lands 
demised,  mortgages  such  lands,  without  reciting  the  lease,  the  term  of  years 
passes  to  the  mortgagee,  and  a  purchaser  at  a  sale  under  a  foreclosure  of  the 
mortgage  becomes  the  assignee  of  the  lease.  Kearney  v.  Post,  1  Sandf  105. 
Mortgage  for  a  term  of  years,  in  1822,  of  land  leased  to  the  mortgagor  in 
1821.  In  1834,  the  mortgage  was  paid  off,  and  the  mortgagee  and  the  owner 
of  the  equity  conveyed  all  their  interest  to  the  party  under  whom  the  plain- 
tiff claims.  Held,  the  plaintiff  was  a  person  claiming  under  a  mortgage 
within  St.  7  Wm.  4,  and  1  Vict.  c.  28,  and  therefore  might  bring  ejectment 
within  twenty  years  after  the  payment,  though  no  rent  had  been  paid  the 
mortgagor  within  twenty  years,  nor  his  title  acknowledged  by  the  tenant  in 
possession.  Budeley  v.  Massey,  6  Eng.  Law  &  Eq.  35G.  A  mortgage  had 
been  made  for  the  term  of  five  hundred  years,  containing  a  covenant  by  the 
mortgagor  to  convey  the  fee  when  required.  Claim,  for  foreclosure  of  the 
equity  of  redemption,  and  to  have  the  freehold  reversion  and  inheritance 
conveyed  to  the  mortgagor.  The  registrar  had  refused  to  file  the  claim 
without  leave.  Leave  given.  Phipps  v.  Budd,  2  Eng.  Law  and  Eq.  137  ; 
See  Propcrt's  &c.  19,  604.  "Where  a  mortgagee  of  leasehold  premises 
reserves  a  right  to  the  mortgagor  to  retain  possession  till  breach  of  condi- 
tion, and  he  holds  over,  the  law  wIlKnot  imply  an  assumpsit  to  pay  rent  to 
the  mortgagee  during  the  time  of  holding  over,  and  previous  to  an  entry  by 
the  mortgagee.  Mayo  v.  Fletcher,  14  Pick.  525.  After  breach  of  condition, 
the  mortgagor  tenders  performance,  and  the  mortgagee  brings  assumpsit  for 
rent  alleged  to  have  accrued  during  the  holding  over.  Held,  the  title  to 
the  premises  could  not  be  tried  in  this  action.  lb.  A  third  person,  by  per- 
mission of  the  mortgagor,  entered  and  occupied  before,  and  retained  posses- 
sion after,  condition  broken.  Held,  the  mortgagee,  who  had  never  entered 
could  not  maintain  trespass  quare  clausum  against  him.  lb.  See  Smith  r. 
Blaisdell,  17  Verm.  109. 


22  THE   LAW   OF   MORTGAGES.  [CII.  I. 

40.  Although  the  legal  estate  is  absolute  at  law  in  the 
mortgagee  after  forfeiture,  yet  the  courts  of  equity,  after  their 
jurisdiction  became  well  established  in  England,  without  any 
legislative  enactment,  thought  that  conscience  and  equity 
required  them  to  break  in  upon  the  common  law,  and  to  grant 
relief  by  permitting  the  mortgagor  at  any  reasonable  time  to 
redeem.  They  held  that  the  power  of  redemption  was  an 
equitable  right,  inherent  in  the  land,  and  binding  all  persons, 
whether  claiming  in  tlie  per,  that  is,  by  the  act  of  the  mort- 
gagee, as  tenant  in  dower,  by  statute  staple,  elegit,  &c. ;  or  in 
the  post,  that  is,  by  the  act  of  the  law,  as  tenant  by  the 
curtesy,  and  the  lord  by  escheat.'  Chancery  viewed  the  con- 
dition of  a  mortgage  as  ?i  penalty,  ox  forfeiture,  against  which 
equity  ought  to  relieve ;  {n)  even  though  the  deed  expressly 
declared,  that  unless  the  debt  were  paid  by  a  certain  day,  the 
estate  of  the  mortgagee  should  be  absolute.^ 

41.  Mr.  Powell-^  says  : — "  When  the  stern  and  rigid  sever- 

1  Parsons  v.  WcUcf?,  17  Mass.  422,  Turner,  1  Call.  252;  Sampson  v.  Pat- 
423;  Wilkinsi?.  l'"rcucli,20Mainc,  116.         tison,  1  Ilarc,  536. 

2  2  Grccnl.  Cniisc,  78 ;  Chapman  v.  «  1  Pow.  108. 


(/i)  Tlie  jurisdiction  of  equity  in  case  of  mortgages  has  also  been  ascribed 
to  the  head  of  acchlcnt ;  but  more  properly,  perhaps,  to  that  of /;«.</,  arising 
from  the  nature  of  the  contract,  as  a  security.  2  Story,  Ya[.  §  1014,  n.  "  A 
mortgage  is  in  many  respects  a  creature  of  e(iuity."  Penniman  i'.  IIolHs,  13 
Mass.  431.  "  Courts  of  equity  have  raised  up  a  system  of  their  own  Tipon 
the  subject  of  mortgages,  in  derogation  of  the  doctrines  of  the  common  law." 
Montgomery  f.  IJrucre,  1  South.  207.  Notwithstanding  the  peculiar  favor 
with  whidi  the  rights  of  mnrtij(i(jors  are  regarded  by  courts  of  equity,  those 
of  jfit/iti/atjri  s  are  also  protected,  so  far  as  the  claims  of  justice  and  good  faith 
demand.  Tlius,  where  a  defendant  in  a  foreclosure  suit  prayed  for  indul- 
gence on  the  ground,  that,  for  a  i)art  of  the  time  since  a  ma.ster's  report  had 
been  made  in  tin;  case,  he  had  been  in  prison,  and  the  rest  of  the  time  forced 
to  leave  the  kingdom;  the  Lord  Chancellor  said  :  "  This  is  thrown  in  to 
move  compassion,  for  all  persons  in  the  defendant's  case,  who  are  encum- 
bered, arc  liable  to  such  accidents;  and  if  I  was  to  give  any  weight  to  it,  a 
creditor  would  lie  utnler  very  great  hardships,  ami  the  saying  inverted,  for 
a  hniler  wouM  then  become  a  slave  to  tlie  borrower."  (iould  r.  Tancred,  2 
Alk.  5.'il.     In   reference   to  llie  somcwlial  uMdefmcd  powiMs  and  duties  of 


en.  I.]  THE   LAW   OF   MORTGAGES.  23 

ities  of  that  (the  feudal)  tenure  yielded  to  the  importunities 
of  a  more  refined  age,  and  the  benefits  of  commerce  were 
found  to  keep  pace  with  the  extension  of  a  free  alienation, 
the  courts  of  equity  moulded  contracts  respecting  real  prop- 
erty into  the  shape  most  convenient  for  the  purposes  of 
society.  In  adjusting  the  various  rules  respecting  it,  many 
contests  arose  between  the  courts  of  Law  and  Equity ;  the 
former  ever  displaying  a  strong  inclination  to  adhere  to  the 
old  rigid  maxims  introduced  for  the  purpose  of  preserving 
real  property  unalienable,  whilst  the  latter  were  disposed  to 
consider  the  essential  nature  of  contracts,  and  to  give  them 
operation  according  to  the  intention  of  the  parties  stipulating. 
In  the  end  they  prevailed,  and  an  equitable  jurisdiction  was 
gradually  introduced,  which,  by  correcting  without  enfeebling 
the  severe  rules  of  the  Common  Law,  laid  the  foundation  of 
a  system  of  jurisprudence,  admirably  adapted  to  the  free 
enjoyment  of  property." (o) 

42.  Chancellor  Kent  remarks :  —  "  The  case  of  mortgages 
is  one  of  the  most  splendid  instances  in  the  history  of  our 
jurisprudence,  of  the  triumph  of  equitable  principles  over 
technical  rules,  and  of  the   homage  which  those  principles 


courts  of  law  and  equity,  with  regard  to  mortgages,  Judge  Story  remarks : 
"  A  judge  at  law  sometimes  deals  with  it  in  its  most  enlarged  and  liberal 
character,  sti'ipped  of  its  technical  and  legal  habiliments;  and  a  judge  in 
equity  is  sometimes  obliged,  in  the  administration  of  his  duties,  to  follow  out 
the  doctrine  of  law,  and  to  contemplate  it  with  much  of  its  original  and 
ancient  strictness."  Gray  i-.  Jenks,  3  Mas.  521,  522.  Where  a  mortgage 
has  been  recovered  upon  at  law,  though  there  be  a  defect  in  its  execution, 
the  defect  will  not  be  regarded  in  equity.     Dust  v.  Conrod,  5  Munf.  411. 

(o)  In  connection  with  the  estate  of  a  mortgagor,  known  as  an  equity  of 
redemption,  it  may  be  remarked,  that,  in  general,  the  same  name  is  applied 
to  the  mortgagor's  interest,  before  forfeiture.  Technically,  this  is  inaccurate, 
because  sucH  interest  is  a  legal,  not  an  equitable  one.  In  the  statute  law  of 
North  Carolina  and  Florida,  the  distinction  is  nicely  observed ;  the  one 
interest  being  termed  a  legal  right  of  redemption,  the  other  an  equity  of 
redemption.  1  N.  C.  Kev.  St.  26G  ;  Thomp.  Dig.  355.  See  State  v.  Laval, 
4  M'Cord,  340. 


24  THE    LAAV   OF   MORTGAGES.  [CH.  I. 

have  received  by  their  adoption  in  the  coui-ts  of  law."  ^  And 
Judf^e  Story  truly  says,^  the  doctrines  of  equity  are  "  founded 
upon  principles  of  justice  so  universal,  as  equally  to  commend 
themselves  to  the  approbation  of  a  Roman  praetor,  and  of  a 
modern  judge,  administering  the  law  of  Continental  Europe, 
ex  cBquo  et  bono." 

43.  Courts  of  equity,  however,  allowed  the  mortgagee  to 
call  upon  the  mortgagor  to  redeem  presently,  or  in  default 
thereof  to  be  forever  foreclosed.  And  they  generally  refused 
to  interfere  in  favor  of  the  mortgagor,  after  twenty  years' 
possession  by  the  mortgagee.-'^ 

44.  Mr.  Cruise  remarks  :  ^ —  "  This  right  acquired  the  name 
of  an  equity  of  redemption ;  but  it  is  not  ascertained  when  it 
was  first  allowed.  Lord  Hale  is  reported  to  have  said,  that, 
in  14  Rich.  2,  the  parliament  refused  to  admit  of  an  equity 
of  redemption. (/;)  Tliis  appears  to  be  a  mistake ;  for  in  the 
case  alluded  to  by  Lord  Hale,  and  of  which  he  has  stated  a 
part  in  his  History  of  the  Common  Law,'^  the  mortgagor 
asserted  that  he  had  paid  the  money,  and  prayed  to  have  his 
lands  again ;  nor  did  the  idea  of  an  equity  of  redemption 
exist  for  some  centuries  after  ;  for  although  Tothill  has  men- 
tioned a  case  in  37  Eliz.,  where  a  mortgagor  had  a  decree  in 
Chancery  for  a  reconveyance  of  lands  mortgaged,  yet  no 
mention  is  made  by  Lord  Coke  of  an  equity  of  redemption  ; 
from  which  it  may  be  presumed,  that  it  was  not  then  gener- 
ally known.  It  is,  however,  probable,  that  this  doctrine  was 
introduced  in  the  reign  of  James  L,  when  the  Court  of  Chan- 

1  4  Kent,  158.  *  Cruise,  62. 

2  2  Story,  E(|.  §  1029.  <>  Chap.  3. 
"  Parsons  v.  Welles,  17  Mass.  423. 


(/;)  Lord  Il.'ile  remarks,  (Roscarrick  r.  Barton,  1  Clia.  Cas.  219,)  that, 
in  the  fourteentli  year  of  Iliclianl  II.,  parliament  would  not'admit  of  an 
cijuity  of  redf;mi)tion.  Dut  it  i.s  .said  not  long  after  to  have  strufo-lcd  into 
existence.  About  two  hundred  years  ago,  Chief  Baron  Hale  called  un 
efjuity  of  redemption  an  ancient  rUjltt.  Ilardrcs,  409 ;  Co.  Lit.  204,  b, 
n.  1. 


CH.  I.]  THE   LAW   OP  MORTGAGES.  25 

eery  had  established  its  equitable  jurisdiction.  And  in  the 
first  year  of  Charles  I.,  there  is  a  case  in  which  this  right  is 
supported,  as  a  thing  of  course." 

45.  It  was  in  reference  to  this  interference  of  a  court  of 
equity  with  mortgages,  that  Lord  Hale  made  the  remark  so 
often  quoted,  that,  "  by  the  growth  of  equity  on  equity,  the 
heart  of  the  Common  Law  is  eaten  out,  and  legal  settlements 
are  destroyed."  ^ 

46.  Chancellor  Kent  says  :  ^  —  "  The  English  law  of  mort- 
gages appears  to  have  been  borrowed,  in  a  great  degree,  from 
the  Civil  Law ;  and  the  Roman  hypotheca  corresponded  very 
closely  with  the  description  of  a  mortgage  in  our  law.  ,  The 
land  was  retained  by  the  debtor,  and  the  creditor  was  entitled 
to  his  actio  hypothecaria,  to  obtain  possession  of  the  pledge, 
when  the  debtor  was  in  default ;  and  the  debtor  had  his 
action  to  regain  possession  when  the  debt  was  paid  or  satis- 
fied out  of  the  profits,  and  he  might  redeem  at  any  time 
before  a  sale" 

47.  On  the, other  hand,  Mr.  Butler,  whose  authority  upon 
such  a  point  is  entitled  to  great  respect,  was  of  opinion,  that 
mortgages  were  founded  on  the  Common  Law  doctrine  of 
conditions.^  Judge  Story  remarks,^  that,  whatever  truth  there 
may  be  in  this  remark,  as  to  the  origin  of  mortgages  of  land 
in  the  English  law,  there  is  no  doubt  that  the  notion  of  the 
equity  of  redemption  was  derived  from  the  Roman  law,  and 
is  purely  the  creature  of  courts  of  equity. 

48.  So  Mr.  Coote  remarks,^  that  the  Roman  hypotheca 
closely  corresponds  with  our  idea  of  a  mortgage.  The  sub- 
ject in  pledge  was  retained  by  the  debtor,  and  the  creditor 
was,  in  default  of  payment,  driven  to  his  actio  hypothecaria 
to  obtain  possession,  and  at  any  time  before  sentence 
the  debtor  might  redeem.  By  that  law,  the  debt  was  the 
principal,  the  security  an  incident,  and  when  the  one  ceased, 

1  Eoscarrick  v.  Barton,  1  Ch.  Cas.  219.  ^  2  Story,  Eq.  §  1005. 

2  4  Comm.  136;    Chapman  i".  Turner,  *  Ibid. 

1  Call,  252.  5  Coote,  40. 

VOL.  I.  3 


26  THE   LAW   OF  MORTGAGES.  [CH.  I. 

the  other  ceased  also ;  and,  until  sentence,  the  ownership  of 
the  debtor  was  not  displaced.  (</) 


(^rf)  Mr.  Powell  remarks,  in  reference  to  the  origin  of  mortgages,  that 
morto-a^es  are  supposed  by  some  to  have  originated  with  the  Jews.  1  Pow. 
1  ;  Cunoeus,  11,  2,  3,  4;  2  Anc.  Un.  His.  130,  131.  In  the  year  of  jubilee, 
all  lands  reverted  to  the  original  owner.  Hence,  at  any  time  after  a  convey- 
ance, the  grantor  might  redeem,  repaying  the  value  from  the  time  of  redemp- 
tion to  the  jubilee. 

It  may  be  added,  that  among  the  Jews,  as  in  later  days,  mortgages  seem 
to  have  been  most  in  use  in  times  of  general  distress.  Thus,  it  is  recorded 
in  the  book  of  Nehemiah,  (ch.  v.  1,  3,  4,  7,)  in  reference  to  those  who 
had  rdturned  from  the  captivity  to  Jerusalem  :  "  And  there  was  a  great  cry 
of  the  people  and  of  their  wives  against  their  brethren,  the  Jews.  .  .  We 
have  jnorlgacjed  our  lands,  vineyards,  and  houses,  that  we  might  buy  corn, 
because  of  the  dearth.  .  .  "We  have  borrowed  money  for  the  king's  tribute, 
and  that  upon  our  lands  and  vineyards.  .  .  Then  I .  .  rebuked  the  nobles 
and  the  rulers,  and  said  unto  them :  "  Ye  exact  usury,  every  one  of  his 
brother." 

Mr.  Powell  further  remarks,  in  reference  to  the  antiquity  of  mortgages  in 
Eno-land,  that  William,  Earl  of  Poictiers,  mortgaged  the  provinces  of  Gui- 
enne  and  Poictou  to  William  Rufus,  King  of  England.  1  Pow.  3  ;  1  Hume, 
270  ;  4,  80. 


CH.  II.] 


DEFEASANCES. 


27 


CHAPTER  II. 


DEFEASANCES. 


1.  Nature  and  history  of  defeasances. 

6.  Deed  and  defeasance  must  be  con- 
current ;  whether  the  date  of  both  must 
be  the  same. 

12.  Language  of  a  defeasance. 


23.  Form,  and  mode  of  execution,  of 
a  defeasance ;  whether  a  seal  is  neces- 
sary. 

24.  Defeasances  in  the  United  States. 

25.  Recording  of  defeasances. 


1.  A  MORTGAGE  may  be  made  by  an  absolute  deed  and  a 
defeasance  {a)  back  to  the  grantor,  instead  of  a  single  condi- 
tional deed.  In  England,  this  form  of  mortgage  has  been  at 
times  discountenanced  by  the  judges,  as  liable  to  accidents 
and  abuse,  indicative  of  fraud,  and  injurious  to  the  mort- 
gagor, because  the  defeasance  might  be  lost,  and  thus  the 
grantee's  title  made  absolute.^    It  would  appear,  however,  to 

^  Cotterellr.  Purchase,  Forr.  63.  See  ham,  2  Johns.  Cha.  191 :  IManufacturers, 
Newconib  v.  Bonham,  1  Vern.  7  ;  Jaques  &c.  r.  Baniv,  &.c.  7  W.  &  S.  335  ;  Scott 
V.  Weeks,  7  Watts,  269;  Dey  v.  Dun-     v.  McFarland,  13  Mass.  309;  Taylor  v. 


(a)  Even  a  contract  to  convey,  in  consideration  of  a  certain  sum,  with  a 
bond  to  reconvey  upon  repayment,  is  a  mortgage.  Harrison  v.  Lemon,  3 
Blackf.  51.  Whether  a  defeasance  can  be  treated  by  the  grantor  as  a  personal 
obligation,  and  a  suit  maintained  upon  it  as  such,  at  his  election,  see  Wat- 
kins  V.  Gregory,  G  Blackf.  113;  Treat  v.  Strickland,  10  Shepl.  234.  In  an 
early  case  in  Massachusetts,  (Holbrook  v.  Finney,  4  Mass.  569,)  Parsons,  C.  J., 
says  :  "  These  two  instruments  must  therefore  be  considered  as  parts  of  one 
and  the  same  contract,  in  the  same  manner  as  a  deed  of  defeasance  forms  with 
the  deed  to  be  defeated  but  one  contract,  though  engrossed  on  several  sheets." 

Debt  on  bond.  The  bond  was  made  by  the  defendant  to  the  plaintiff,  in 
connection  with  a  deed  of  land  from  the  plaintiff  to  him,  conditioned  to 
reconvey  to  him,  his  heirs,  &c.,  upon  being  indemnified  from  a  note  on 
which  the  defendant  was  a  surety,  by  payment  thereof  on  or  before  a  cer- 
tain day.  It  seems,  the  transaction  constitutes  a  mortgage,  and  the  plaintiff, 
having  conveyed  the  land  to  a  third  person,  though  after  paying  the  note 
and  demanding  a  deed  from  the  defendant,  thereby  ceased  to  have  any 
interest  in  the  bond,  which  passed,  as  a  defeasance,  with  the  estate.  Hogins 
V.  Arnold,  15  Pick.  259. 


28  THE   LAW   OF  MORTGAGES.  [CH.  II. 

have  been  an  ancient  mode  of  mortgaging.  Thus,  in  the 
case  of  Jackson  v.  Vernon,^  decided  in  1789,  Heath,  J.,  speaks 
of  the  instrument  then  under  consideration,  as  "  not  in  the 
modern  form,  but  like  an  ancient  mortgage  by  deed  absolute, 
with  another  deed  of  defeasance."  ^^ 

2.  Mr.  Coote  says,  in  consequence  ol^Be  discouragement 
it  received,  this  mode  of  mortgage  has  become  almost  obso- 
lete.2 

3.  In  Cotterell  v.  Purchase,^  a  leading  case  on  this  subject, 
the  plaintiff,  in  1708,  by  lease  and  release  conveyed  to  the 
defendant,  with  a  covenant,  that  she  (the  plaintiff)  would  not 
agree  to  any  division  or  partition  of  the  estate  (she  being 
a  joint  tenant)  without  license,  &c.,  of  the  defendant.  The 
joint  owner  with  the  plaintiff  was  at  the  time  in  possession 
of  the  whole  estate,  and  so  continued  till  1710,  when  the 
defendant  turned  her  out  by  ejectment  from  a  moiety  of  the 
premises,  and  enjoyed  it  quietly  till  1726.  The  plaintiff  then 
files  a  bill  to  redeem,  and  the  defendant  claims  as  an  abso- 
lute purchaser.  It  appeared,  that  the  plaintiff  had  made  a 
previous  conveyance  of  the  same  premises,  absolute  at  law, 
but  intended  by  the  parties  as  a  mortgage ;  that  this  deed 
was  cancelled  upon  the  making  of  the  second  one,  and  in 
consideration  of  a  further  sum,  making  the  whole  debt  and 
interest,  the  new  conveyance  made.  The  Lord  Chancellor, 
in  dismissing  the  bill,  remarked  :  *  —  "  The  case  is  something 
dark.  The  first  deed  is  admitted  to  be  a  mortgage ;  and  the 
second  is  made  in  the  same  manner,  excepting  an  odd  sort 
of  a  covenant,  which  is  the  darkest  part  of  the  case  ;  for,  to 
suppose  that  it  is  an  absolute  conveyance,  and  to  take  a 
covenant  from  one  who  had  nothing  to  do  with  the  estate, 
makes  both  the  parties  and  covenants  vain  and  ridiculous. 
But  then  it  will  be  equally  vain  and  ridiculous,  if  you  sup- 
pose the  deed   not   an   absolute  conveyance."     After  com- 

Wcld,  5,  109;  Brcckenridgc  i'.  Auld,  1  "  Cootc,  156. 

Kob.Va.  148;  Van  Waj,mcr  u.  Van  Wag-  »  Ca.  Temp.  Tall).  01. 

ner,  .3  lialst.  Ch.  27.  *  Cn.  Temp.  Talb.  G;i,  G4. 
1  1  II.  Bl.  119. 


CH.  II.]  DEFEASANCES.  29 

menting  upon  the  circumstances  of  the  case,  as  bearing  upon 
this  question,  he  proceeds  to  say :  "  Her  long  acquiescence 
under  the  defendant's  possession  is  to  me  a  strong  evidence 
that  it  was  to  be  an  absolute  conveyance,  otherwise  the 
length  of  time  would  not  have  signified ;  for,  they  who  take 
a  conveyance  of  an  estate,  as  a  mortgage,  without  any  de- 
feasance, are  guilty  of  a  fraud ;  and  no  length  of  time  will 
bar  a  fraud.  In  the  Northern  Parts,  it  is  the  custom  in 
drawing  mortgages  to  make  an  absolute  deed,  with  a  de- 
feasance separate  from  it ;  but  I  think  it  a  wrong  way  ;  and 
to  me  it  will^lways  appear  with  a  face  of  fraud ;  for  the 
defeasance  nmy  be  lost,  and  then  an  absolute  conveyance 
is  set  up.  I  would  discourage  the  practice  as  much  as  pos- 
sible." 

4.  An  instrument  of  defeasance  may  be  construed  to  create 
a  mortgage,  although  the  parties  have  acquiesced,  for  a  long 
time  after  the  period  of  payment  stipulated  therein,  in  the 
conveyance  of  the  property ;  more  especially,  if  it  is  a  rever- 
sionary interest. 

5.  The  plaintiff,  being  indebted  to  the  defendant,  made  an 
absolute  assignment  of  a  reversion,  taking  back  a  memoran- 
dum that  the  defendant  would  reconvey,  upon  repayment, 
with  interest,  in  six  months  ;  the  plaintiff  paying  part  of  the 
costs.  Nothing  further  was  done  for  eighteen  years.  Held, 
a  mortgage.! 

6.  In  general,  the  defeasance  and  the  deed  must  be  parts 
of  one  transaction,  to  constitute  a  mortgage.  A  conveyance 
must  be  a  mortgage,  if  at  all,  at  the  time  of  its  inception ;  it 
never  can  become  one  by  a  subsequent  act.  If  there  was 
ever  a  moment,  when  it  could  be  considered  only  as  an 
absolute  estate,  it  must  ever  remain  so.  The  mere  date  of 
the  defeasance,  however,  may  be  subsequent  to  that  of  the 
deed.2     That  the  deed  and  defeasance  were  executed  on  dif- 

1  Waters  r.  ISIynn,  14  Jur.  341.  Baldwin,  13  Ala.  24G  ;  Erskinc  v.  Town- 

2  Lund  V.  Lund,  1  N.  11.  41  ;  Mardcn  send,  2  Mass.  49.5:  Codwell  r.  Wcb- 
V.  Babcock,  2  Met.  103;  Harrison  v.  stcr.  13  Pick.  413 :  Brvan  r.  Cowart,  21 
Tru.stees,    &c.   12  Mass.  4G3  :   Kelly  r.  Ala.  92. 

Thompson,  7  Watts,  401  ;  -Freeman  v. 

3* 


80  THE   LAW   OF   MORTGAGES.  [CH.  II. 

ferent  days,  cannot  be  inferred  from  their  having  been  wit- 
nessed by  different  persons,  more  especially  if  they  bear  the 
same  date,  and  evidence  is  offered  tending  to  show  that  they 
were  executed  on  the  same  day.^  (b) 

7.  The  general  principle  upon  this  subject  has  been  thus 
expressed  in  Massachusetts  :  "  When  the  deed  was  originally 
given  absolute  in  its  form,  but  with  an  agreement  made  in 
good  faith,  that  a  defeasance  should  be  executed  on  request ; 
when  such  defeasance  was  executed  in  good  faith,  it  related 
back  to  the  deed,  and  made  it  a  mortgage.  Had  the  estate 
been  attached  as  Partridge's,  in  the  mean  time,  it  might  be 
attended  with  difficulties,  but  they  do  not  now  arise.  Where 
the  delay  of  the  defeasance  does  not  affect  tliird  persons,  the 
defeasance,  when  made,  is  good  between  the  parties."  ^ 

8.  In  Kerr  v.  Gilmore,^  Huston,  J.,  makes  a  distinction 
between  the  case  of  a  deed  and  agreement  of  separate  and 
distinct  dates,  and  arising  out  of  contracts  really  separate, 
and  one,  where  they  are  of  the  same  date,  and  executed  at 
the  same  meeting  of  the  parties,  before  the  same  witnesses, 
and  therefore  in  point  of  law  one  transaction ;  holding  that 
the  latter  must  be  a  mortgage,  whereas  the  former  may  be  a 
sale,  if  there  are  not  circumstances  showing  it  to  be  a  mort- 
gage. 

9.  In  Kelly  v.  Thompson,'*  Sergeant,  J.,  remarked,  with 
reference  to  an  instrument  of  defeasance  bearing  date  after 

1  Taylor  v.  Weld,  5  Mass.  116,  117.  -  Per    Shaw,    Cli.   J.  ;    Lovcving   v. 

3  6  Watts,  405.  I'ogg,    18    Pick.    543.      Sec    Scott   v. 

*  7  Watts,  404.  Henry,  8  Eng.  112. 

(J))  In  Maine,  tliey  must  Lear  the  same  date.  Me.  Rev.  St.  553.  But  see 
2  Grcenl.  Cruise,  81,  rz.  A  defeasance  must  be  made  by  the  same  species 
of  assurance  as  the  principal  instrument.  Albany's  case,  1  Co.  113;  Bro. 
Defeasance,  12.  In  the  case  of  a  feoffment  or  other  conveyance,  it  must  be 
made  at  the  same  time  as  the  prlnci[)al  deed,  so  that  both  may  form  parts  of 
one  and  tlie  same  assurance.  Bro.  ])efe(isancc,  5;  Dyer,  315;  2  Saund. 
48,  h.  A  subsequent  agreement  to  make  an  absolute  deed  a  mortgage, 
witliout  a  new  consideration,  has  been  held  void,  as  nudum  ■paclum.  Bryan 
V.  Cowart,  21  Ala.  92. 


CII.  II.]  DEFEASANCES.  31 

the  deed,  —  "  It  is  true,  dates  and  papers  of  this  kind  may  be 
affected,  if  it  can  be  shown  that  the  whole  was  merely  a 
scheme  or  contrivance ;  that  in  reality  it  was  a  loan  merely, 
and  that  the  defeasance  was  understood  and  agreed  on  in 
the  original  arrangement,  and  the  discrepancy  of  dates  was 
merely  accidental,  or  with  a  sinister  design." 

10.  Chancellor  Walworth  says :  ^  —  "  The  complainant  hav- 
ing given  an  absolute  conveyance,  and  this  writing  not  being 
in  terms  a  defeasance  thereof,  the  onus  of  showing  that  both 
were  executed  at  the  same  time,  and  in  pursuance  of  the 
same  agreement,  is  unquestionably  thrown  upon  the  com- 
plainant. And  having  waited  twelve  years  before  he  filed 
his  bill,  and  untU  Gridley,  who  drew  the  writing,  and  who 
probably  was  the  only  person  who  could  have  proved  the  cir- 
cumstances under  which  it  was  given,  was  dead,  he  should 
now  be  held  to  strict  proof." 

11.  Where  a  deed  was  made  without  the  knowledge  of 
the  grantee,  and  placed  on  record,  and  in  the  course  of  a 
month  afterwards  the  grantor  informed  the  grantee  of  it,  and 
requested  him  to  get  the  deed  from  the  registry,  wliich  he 
accordingly  soon  did,  and  thereupon  gave  back  an  obligation 
to  reconvey  upon  being  indemnified  for  certain  liabilities ; 
this  was  held  a  good  defeasance.^ 

12.  The  precise  language  of  the  defeasance  is  immaterial. 
The  more  usual  form  is,  that  the  deed  shall  be  void  on  pay- 
ment of  the  debt  within  or  at  a  specified  period.  But  a  pro- 
vision, that  upon  such  payment  the  grantee  shall  reconvey^ 
is  equally  effectual,  more  especially  if  the  condition  expressly 
recites,  that  the  conveyance  is  made  as  a  security  for  money 
due.'^ 

13.  So  a  conveyance  of  land  for  a  certain  consideration, 
with  a  covenant  by  the  grantee  to  reconvey  on  payment  of 
that  sum  within  one  year,  constitutes  a  mortgage,  notwith- 

1  Holmes  v.  Grant,  8  Paige,  255,  256.     Webb    v.   Patterson,    7    Humph.    431 ; 

2  Harrison  u.  Trustees,  &c.  12  Mass.  McGan  v.  Marsiiall,  ib.  121;  Ham- 
4-56.  mouds  v.  HoiJkins,  3  Yerg.  525. 

^  Erskine  v.  Townsend,  2  Mass.  497  ; 


32  THE   LAW   OP  MOETGAGES.  [CH.  II. 

standing  parol  evidence  of  the  parties'  intention  to  the  con- 
trary.i 

14.  A  condition  on  the  back  of  an  absolute  deed,  though 
without  date,  signature,  or  seal,  has  been  held  to  constitute  a 
defeasance ;  more  especially  as  the  demandant  counted  on 
his  seizin  in  fee  and  mortgage?  So  a  sealed  agreement  to 
reconvey,  upon  repayment  of  the  price  within  a  certain  time, 
indorsed  on  the  agreement,  is  held  to  constitute  a  mortgage, 
and  parol  evidence  not  received  to  the  contrary.^  So  the 
condition  of  defeasance  need  not  be  inserted  in  the  body  of 
the  deed  ;  but  may  be  added  underneath.^ 

15.  In  the  case  of  Perkins  v.  Dibble,^  a  deed  upon  its  face 
purported  to  be  an  absolute  conveyance,  but  upon  its  back 
contained  a  condition  in  usual  form  for  the  payment  of  a 
note.  It  was  held,  that  at  law  as  well  as  in  equity  the  in- 
strument was  a  mortgage,  the  indorsement  showing  the  pur- 
pose for  which  the  deed  was  delivered,  as  collateral  security 
for  the  payment  of  money. 

15  a.  So  an  agreement  indorsed  upon  an  absolute  deed, 
that  the  vendee  should  execute  certain  notes  for  the  purchase- 
money,  with  security,  and  that  the  agreement  should  "  act  as  a 
lien  "  upon  the  land,  until  the  notes  should  be  satisfied  in  full, 
signed,  sealed,  and  acknowledged  by  the  vendor  and  vendee, 
and  recorded  with  the  deed ;  is  to  be  regarded  as  a  part  of 
the  deed,  and  operates  as  a  lien  upon  the  land.*^ 

15  b.  Writ  of  entry.  The  tenant  avers,  that,  at  the  time 
of  the  conveyance  under  which  the  demandant  claims,  the 
demandant  executed  to  him  a  deed  of  defeasance,  contain- 
ing an  agreement  of  the  parties,  as  follows  :  "  The  tenant, 
in  consideration  of  $2,000  to  be  paid  him  on  the  tenant's 
conveying  to  the  demandant  in  fee,  agrees  to  execute  such 
conveyance  ;  the  demandant  agrees  to  pay  him  that  sum ; 
the  conveyance,  after  registry,  is  to  be  deposited  with  a  third 

1  ColwcUu.  Woods,  3  Watts,  188.  *  Kent  v.  Allhritain,  4  How.  (Miss.) 

2  Stocking  V.  Fiiircliild,  .'>  Tick.  181  ;     317. 

acr.  Whitney  v.   Frcncii,  25  Vorm.  0G3.         '-^  10  Ohio,  433. 
«  Brown  v.  Nicklc,  6  Barr,  3<J0.  ^  Baldwin  v.  Jenkins,  23  Miss.  206. 


CH.  II.]  DEFEASANCES.  33 

person  till  repayment  of  the  same  with  interest,  or  till  a  cer- 
tain day ;  in  default  of  such  payment,  the  deed  to  be  deliv- 
ered to  the  demandant,  who  may  thereupon  enter  and  take 
the  profits."  The  tenant  claims,  that  the  transaction  con- 
stitutes a  mortgage,  and  to  be  heard  in  chancery.  Held,  a 
mortgage.^ 

15  c.  A  conveyance  to  a  trustee,  with  power  to  sell,  pay  a 
debt  from  the  proceeds,  and  deliver  the  balance  to  the  grantor, 
upon  his  failure  to  pay  the  debt,  is  a  mortgage,  in  Ohio,  and 
takes  effect  only  from  registration.^ 

15  d.  Conveyance  for  the  full  value  of  the  land,  with  a 
written  agreement,  that,  if  the  grantee  could  sell  it  for  more 
within  two  years,  with  interest  and  the  cost  of  repairs,  the 
surplus  should  be  paid  the  grantor.  Held,  a  mortgage,  though 
the  grantee  swore  in  his  answer  that  he  considered  it  a  sale.^ 

16.  Lease  for  years  by  indenture,  the  lessor  acknowledging 
the  receipt  in  advance  of  a  certain  sum,  as  rent  in  full  for  the 
whole  term,  and  the  lessee  covenanting  to  reconvey  on  repay- 
ment of  such  sum  with  interest.  Held,  a  mortgage,  with  the 
same  privileges  as  a  mortgage  of  the  freehold.^  So  also, 
though  executed  only  by  the  lessor,  if  the  lessee  accepts  and 
takes  possession  under  it.^  In  such  case,  though  there  is 
technically  no  covenant  by  the  lessee,  upon  which  an  action 
will  lie,  yet,  if  he  underlet  and  receive  rent  during  the  term, 
to  the  full  amount  of  the  sum  paid,  with  interest,  his  estate 
ceases,  and  the  title  revests  in  the  lessor.  If  he  receive  more 
than  that  sum,  the  surplus  is  received  by  him,  not  as  mort- 
gagee, but  for  the  lessor,  who  may  maintain  assumpsit  for 
money  had  and  received  against  him.^ 

17.  An  absolute  deed  was  made  to  a  jcreditor,  with  the 
understanding  that  he  should  pay  his  own  debt,  indemnify 
himself  against  his  liabilities,  and  satisfy  other  creditors,  and 


1  Carey  v.  Rawson,  8  Mass.  159.  *  Nugent  v.  Eilej',  1  Met.  117. 

"  Woodnift'u.  Robb,  19  Ohio,  212.  °  Ibid. 

3  Gillis  V.  Martin,  2  Dev.  Ch.  470.         »  Ibid, 
See  English  v.  Lane,  1  Port.  328  ;  Ben- 
nett V.  Union,  &c.  5  Humph.  612. 


34  THE   LAW   OF  MORTGAGES.  [CH.  II. 

pay  the  balance  to  the  debtor's  wife  and  children.  Held,  the 
transaction  was  a  mortgage,  as  to  the  debt  of  the  grantee, 
and  a  trust  for  the  balance.^ 

18.  But  a  bond,  given  two  years  after  the  deed,  to  convey 
to  the  wife  of  the  grantor,  upon  payment  of  certain  notes, 
has  been  held  not  to  constitute  the  transaction  a  mortgage ; 
and  parol  evidence  to  be  inadmissible,  that  the  grantor  was 
allowed  by  the  grantee  to  retain  possession,  that  the  deed 
was  given  as  security,  and  the  bond  not  made  at  the  same 
time  with  the  deed,  only  because  the  amount  due  had  not 
then  been  ascertained.^ 

19.  So  where  the  grantee  gives  back  a  writing,  the  purport 
of  which  is,  that  he  will,  at  his  election,  either  reconvey  upon 
payment  of  his  debt,  or  sell  the  land,  pay  himself  from  the 
proceeds,  and  pay  over  the  balance  to  the  grantor ;  this  is  no 
mortgage.^ 

20.  A  purchaser  of  land,  by  an  agreement  under  seal  with 
an  agent  of  his  creditor,  assigned  to  the  agent  all  his  interest 
in  the  land,  in  trust  for  the  creditor,  and  promised  to  give  the 
creditor  a  mortgage,  as  soon  as  he  should  obtain  a  deed. 
Held,  this  did  not  constitute  a  mortgage.* 

21.  A  decree  that  a  party  is  entitled  to  certain  lands,  and 
that  he  be  let  into  possession,  charged  with  the  payment  of 
a  certain  sum  to  another  person,  does  not  make  the  latter  a 
mortgagee.^ 

22.  Farnum,  having  sold  land  to  Pease,  conveyed  the  same 
to  Rice,  who  was  surety  upon  a  note  signed  by  Pease,  and 
Rice  gave  Pease  a  bond,  conditioned  to  convey  to  him,  upon 
being  indemnified  for  his  liability  on  the  note.  Held,  Rice 
was  not  a  mortgagee,  but  the  absolute  owner  of  the  estate.^ 

22  a.  Upon  a  loan  of  money,  a  scrivener  drew  a  deed  of 
land  and  a  bond  of  defeasance,  which  were  executed,  and  the 
deed  delivered,  but,  by  agreement,  the  bond  left  with  him,  to 

1  McLanalian      v.      McLanalian,      G        *  Ilumiilircys    v.    Snyder,     1     Mcrr. 

Iluini.h.  09.  (Iowa,)  2G3. 

'^  Bcnnock  v.  Whipple,  3  Fairf.  340.  ^  Davenport  v.  Bartlett,  9  Ala.  179. 

3  Fuller  V.  Pratt,  1  Fairf.  197.  "  Fowler  v.  Kiec,  17  Fiek.  100. 


CH.  II.]  DEFEASANCES.  35 

be  delivered  to  the  obligee  if  within  a  certain  time  he  should 
repay  the  money,  otherwise  to  the  obligor.  The  money  not 
being  repaid  within  the  time,  the  bond  was  given  up  to  the 
obligor;  and  the  obligee  having  died  before  it  was  thus  given 
up,  his  administratrix  brings  a  bill  in  equity  to  redeem  against 
a  purchaser,  with  notice  from  the  obligor.  Held,  the  bond  was 
an  escroiv,  and  did  not  constitute  the  transaction  a  mortgage, 
and  the  bill  was  dismissed.^ 

22  b.  Parol  agreement  between  A.  and  B.,  that  A.  should 
pay  for  certain  lands,  and,  on  being  reimbursed  by  B.  there- 
for, convey  them  to  B.  The  lands  were  sold  at  sheriff's'  sale, 
bought  by  A.  with  his  own  money,  and  conveyed  to  him  by 
the  sheriff.  Held,  the  sheriff  had  no  authority  to  take  a  mort- 
gage, either  from  the  purchaser  at  the  sale,  or  his  assignee ; 
and  that  the  contract  between  A.  and  B.,  was  simply  a  con- 
tract for  a  purchase  of  the  premises,  and  did  not  possess  any 
attribute  of  a  mortgage.^ 

22  c.  Conveyance,  in  consideration  of  $200.  If  the  grantee 
do  not  make  $200  out  of  the  land,  the  grantor  to  refund  the 
deficiency.  Ten  years  afterwards,  the  grantor  brings  a  bill 
to  redeem,  after  several  transfers  of  the  land.  Held,  the  deed 
was  not  on  its  face  a  mortgage  ;  if  so  intended,  it  gave  only 
a  right  to  redeem  the  proceeds  of  the  land  from  the  grantee 
himself;  and  this  right  was  waived  by  the  grantor's  declining 
an  account.^ 

23.  In  general,  a  defeasance  must  be  an  instrument  of  as 
high  a  nature  as  that  which  it  is  designed  to  defeat.  There- 
fore, to  constitute  a  mortgage,  it  must  be  a  specialty,  or  under 
seal,  because  the  conveyance  which  it  accompanies  is  itself 
made  by  deed,  (c)  It  will  be  presently  seen,  that  this  rule  is 
not  adhered  to  in  courts  of  equity.* 

1  Bodwell  V.  Webster,  13  Pick.  411.  ^  Floyd  v.  Harrison,  2  Rob.  (Va.)  161. 

2  Stephenson  v.  Thompson,  13  111.  *  See"  Marshall  v.  Stewart,  17  Ohio, 
186.  356. 


(c)  In  the  case  of  Harrison  r.  The  Trustees,  &c.  (12  Mass.  456,)  the  state- 
ment of  facts  set  forth,  that  the  instrument  set  up  as  a  defeasance  "  "was  not 


36  THE  LAW  OP  MORTGAGES.  [CH.  II. 

24.  The  subject  of  defeasances  is  in  this  country  very  gen- 
erally regulated  by  statute.  In  Massachusetts,  in  case  of  an 
absolute  deed,  with  a  deed  of  defeasance,  bond,  or  other  in- 
strument given  back,  the  latter  must  be  recorded,  in  order  to 


under  seal,"  (p.  457.)  But,  in  the  opinion  of  the  court,  (pp.  463,  464,)  it 
is  repeatedly  called  "  a  bond,"  and  the  only  objection  urged  against  it  by 
counsel,  or  considered  by  the  court,  appears  to  have  been,  that  it  was  not 
executed  at  the  same  time  with  the  deed,  which  could  hardly  have  been 
the  case,  had  it  been  an  unsealed  instrument.  In^the  case  of  Wendell  v. 
N.  H.  Bank,  (9  N.  II.  419,)  a  mortgage  was  absolutely  assigned  by  a  sealed 
instrument.  A  writing  was  given  back,  not  under  seal,  acknowledging  it  as 
security.  Held,  the  defeasance  was  invalid,  if  the  property  was  real,  for 
want  of  a  seal ;  if  personal,  there  could  be  no  redemption  in  New  Hamp- 
shire. 

A  second  mortgagee  took  an  absolute  deed,  giving  back  an  unsealed 
agreement  to  dispose  of  the  land,  apply  the  proceeds  upon  the  mortgage 
debts,  and  pay  over  any  surplus  to  the  mortgagor,  and,  if  necessary  to  per- 
fect the  title,  to  foreclose  the  second  mortgage.  He  accordingly  foreclosed 
the  second  mortgage,  and  the  land  was  sold  under  the  decree,  subject  to  the 
first  mortgage,  for  less  than  one  twentieth  of  the  second  mortgage  debt  and 
costs.  The  second  mortgagee  took  possession  and  kept  down  the  interest  on 
the  first  mortgage,  and  paid  the  taxes,  but  these  amounts  exceeded  the 
income  of  the  estate.  Upon  a  bill  brought  by  him  against  the  mortgagor,  it 
was  held,  that  the  absolute  deed  to  the  second  mortgagee,  with  the  written 
defeasance,  constituted  only  a  further  security  for  his  debt,  and  he  could  not, 
therefore,  pass  a  good  title  to  a  purchaser  with  notice ;  and  that  he  might 
maintain  this  bill,  to  ascertain  the  amount  due  him  upon  his  original  bond 
and  mortgage  and  subsequent  payments,  and  for  a  sale  and  decree  for  the 
deficiency.     Parsons  v.  Mumford,  3  Barb.  Cha.  152. 

A  bill  in  equity  alleged,  that  a  seal  was  by  mistake  omitted  from  an  abso- 
lute deed,  and  prayed  that  the  defendant  might  be  compelled  to  affix  his 
seal.  It  appeared  that  there  was  a  defeasance,  making  the  deed  a  mortgage. 
Held,  under  the  general  prayer  for  relief,  the  court  could  not  decree  a  fore- 
closure.    Moore  v.  Madden,  2  Eng.  530. 

A.  conveyed,  by  deed,  certain  lands,  to  B.,  and  took  back  a  writing,  not 
under  seal,  signed  by  B.,  whereby  he  promised  to  reconvey  the  same,  upon 
payment  of  certain  moneys  by  a  cci-tain  day.  Held,  such  promise  did  not 
constitute  a  mortgage  ;  that  the  time  of  payment  \vas  to  be  regarded  as  of 
the  essence  of  the  contract,  even  in  a  court  of  equity,  and  that,  after  default, 
A.  had  not  any  attachable  interest.     French  v.  Sturdivant,  8  Greenl.  246. 


CH.  II.]  DEFEASANCES.  37 

be  effectual  against  any  one  but  the  grantee,  his  heirs  or  devi- 
sees, or  those  having  actual  notice.'  (d)  An  act  of  Rhode 
Island  ^  speaks  of  a  bond  of  defeasance,  or  other  instrument 
which  creates  a  mortgage  or  redeemable  estate.  Like  expres- 
sions are  used  in  Illinois  and  New  Jersey.^  In  the  latter 
State,  any  writing  may  operate  as  a  defeasance.  In  Dela- 
ware,** the  language  is,  "  a  defeasance  or  a  written  contract 
in  the  nature  of  a  defeasance,  or  for  reconveyance  of  the 
premises,  or  any  part  thereof."  In  New  Hampshire,  the  con- 
dition of  the  mortgage  must  be  contained  in  the  deed  itself. 
But  reference  to  a  bond,  made  at  the  same  time  with  the 
deed,  is  sufficient.^  The  Revised  Statutes  define  a  mortgage 
as  a  conveyance  to  secure  payment  of  money,  or  performance 
of  any  other  thing  stated  in  the  conditions  thereof.*^  In  Flor- 
ida, all  writings  of  conveyance,  to  secure  payment  of  money, 
are  mortgages." 

25.  In  Pennsylvania  and  Indiana,  the  defeasance  must  be 
recorded,  to  be  valid  against  creditors,  &c.  In  New  Jersey, 
the  registration  of  the  deed  is  invafid,  so  that  the  grantee 
shall  not  have  the  benefits,  &c.,  of  a  mortgagee,  unless  with 
it  he  record  a  note  or  abstract  of  the  defeasance.  So  in  Dela- 
ware. In  this  State,  the  defeasance  is  void  against  bond  fide 
purchasers,  unless  the  grantor  also  record  it  within  a  certain 
time.^  In  Illinois,  the  act  provides,  that  a  party  "  shall  not 
have  the  benefit "  of  a  defeasance,  unless  recorded  within 
thirty  days.^  In  Pennsylvania,  it  must  be  recorded,  to  bind 
creditors,  &c.,  without  notice.^*^     In    Michigan,  a  purchaser 

1  Mass.  Rev.  St.  407,  ch.  59,  §  27.  "  Thomp.  Dig.  376. 

2  K.  I.  Laws,  204.  »  Ub.   sup.  Ind.   Rev.   Sts.  2.32.     See 

3  III.  Rev.  L.  131  ;  1  N.  J.  L.  464;  Thompson  v.  Mack,  Barring.  Ch.  150. 
N.  J.  Rev.  St.  658.  9  111.  Rev.  L.  131. 

•>  Dela.  St.  1829,  91.  i^  Jaques    v.    Weeks,   7    Watts.   261; 

5  Bassett  i-.  Bassett,  10  N.  H.  64.  See  Manuf'rs,  &c.  v.  Bank,  &c.  7  W.  &  S. 
Tifft  V.  Walker,  ib.  150.  335. 

6  N.  H.  Rev.  St.  245. 


(f/)  The  exception  applies  to  the  assignee  in  insolvency  of  the  grantor. 
Stetson  V.  Gulliver,  2  Cush.  494. 
VOL.  I.  4 


38  THE   LAW   OF  MORTGAGES.  [CH.  II. 

with  notice  is  bound  without  registration.     But  not  a  judg- 
ment creditor  or  execution  purchaser.^ 

26.  In  the  case  of  Friedley  v.  Hamilton,'^  decided  in  Penn- 
sylvania, it  was  held,  that  an  absolute  deed  and  defeasance, 
made  at  the  same  time,  constitute  a  mortgage  ;  but  unless  the 
defeasance  is  recorded,  the  conveyance  is  to  be  considered  as 
an  unrecorded  mortgage,  and  postponed  to  a  subsequent 
judgment,  although  the  deed  itself  has  been  duly  recorded. 
Gibson,  C.  J.,  remarks  :  —  "  Deeds,  which  are  parts  of  the  same 
transaction,  constitute  but  one  instrument.  The  mortgage 
in  this  instance,  (for  such  it  undoubtedly  is,)  consisted  of  an 
absolute  conveyance,  and  a  bond  with  condition  to  reconvey 
on  payment  of  six  thousand  dollars  by  the  grantor.  The 
absolute  conveyance  has  been  recorded  ;  but,  according  to  the 
letter  of  the  act  of  assembly,  the  mortgage,  which  consists  of 
all  its  parts,  has  not ;  and  it  remains  to  be  seen,  whether  it  be 
well  recorded  within  the  equity  of  the  act.  The  sum  of  the 
argument  in  support  of  the  affirmative  is,  that,  as  the  parties 
interested  were  bound  to  take  notice  of  the  absolute  convey- 
ance, which  was  undoubtedly  well  recorded,  enough  was 
done  to  lead  to  an  inquiry  into  the  true  nature  of  the  trans- 
action, which  is  said  to  be  equivalent  to  full  notice.  Con- 
structive notice  from  facts  is  a  conclusion  of  law,  which  can 
be  drawn  only  from  facts  actually  within  the  knowledge  of 
the  party,  and  never  from  those  of  which  he  had  only  con- 
structive notice ;  else  we  should  have  construction  on 
construction,  and  inference  on  inference,  without  beginning 
or  end.  The  registry  of  a  deed  was  intended  itself  to  contain 
all  the  essential  parts  of'  full  and  complete  notice  of  every 
fact  necessary  to  be  known,  instead  of  barely  putting  the 
party  on  the  scent,  and  requiring  him  to  run  all  around  the 
world  after  the  grantor  and  the  grantee,  seeking  information 
as  to  the  true  nature  of  the  transaction.  The  deed  recorded 
here  was  notice  of  nothing  but  what  it  purported  to  be,  and 

1  Mich.  Ilcv.  St.  2G1.  2  17  S.  &  K.  70. 


CH.  II.]  DEFEASANCES.  39 

by  that  the  creditor  was  informed  that  the  land  had  been 
conveyed  unconditionally." 

27.  In  the  case  of  Jaques  v.  Weeks,i  in  the  same  State,  it 
was  held,  that  in  case  of  a  deed  and  defeasance,  the  recording 
of  the  deed  alone  was  not  sufficient,  within  the  recording 
acts,  as  against  a  subsequent  bond  fide  purchaser  or  creditor 
of  the  grantor  wdthout  any  other  notice  ;  that  if  a  purchaser 
have  notice  of  the  deed  and  defeasance,  he  is  in  equity  bound 
in  all  respects  like  the  party  under  whom  he  claims  ;  but  that 
it  is  otherwise  with  a  judgment  creditor,  or  an  execution 
purchaser,  because  a  judgment  has  priority  over  an  unrecorded 
mortgage.  Sergeant,  J.,  remarks :  ^ —  "No  reason  exists,  why 
a  difference  should  be  made,  in  the  duty  of  the  parties  to  put 
the  lien  on  record,  where  but  one  instrument  is  used,  and 
where  there  are  two.  The  great  object  of  the  recording  acts 
is,  to  compel  those,  who  claim  a  priority  of  conveyance  or 
lien,  to  place  the  true  nature  of  the  transaction  on  record,  so 
that  all  may  have  recourse  to  it  for  correct  information  ;  but, 
if  the  deed  alone  be  recorded  without  the  defeasance,  a  false 
notice  of  the  transaction  is  given.  To  allow  this  to  be  valid, 
leaves  it  in  the  power  of  the  parties  to  hinder  and  defeat  pur- 
chasers and  creditors,  by  making  that,  which  was  in  reality  a 
mortgage,  bear  the  appearance  of  an  absolute  deed,  or  other- 
wise, just  as  it  suits  their  purposes.  The  mortgagee  may 
thus  become  a  secret  trustee  for  the  mortgagor  as  to  the  sur- 
plus beyond  the  money  actually  due.  To  say  that  the  mort- 
gagor may  or  may  not  record  the  defeasance,  as  he  pleases, 
and  that  if  he  did  not,  he  thereby  agrees  that  the  deed  shall 
be  absolute,  is  to  enable  a  party  to  make  it  either  a  mortgage 
or  absolute  deed,  at  his  pleasure ;  whereas  the  character  of 
the  instruments  is  indelibly  stamped  upon  them  at  their 
original  formation,  constituting  them  in  law  a  mortgage  with 
all  its  incidents ;  and,  if  it  were  once  a  mortgage,  it  always 
continues  to  be  so,  not  liable  to  be  changed  in  this  respect  by 
posterior  acts  or  omissions." 

'  7  Watts,  261.  2  lb.  268. 


40  THE   LAW   OF  MORTGAGES.  [CH.  II. 

28.  Upon  the  same  point,  Chancellor  Kent  remarks  :^  —  "A 
deed  absolute  upon  its  face,  though  taken  by  way  of  mort- 
gage, is  certainly  a  lawful  instrument,  and  the  party  is  only 
subjected  to  the  hazard  of  having  it  defeated  by  a  subsequent 
mortgage  duly  registered." 

29.  In  the  case  of  Dey  v.  Dunhaiii,^  a  deed  was  made  to 
the  defendant,  absolute  on  its  face,  with  full  covenants,  and 
acknowledged  and  recorded  as  a  deed  on  the  day  of  its  date. 
It  was  admitted,  however,  that  the  deed  was  taken  in  the  first 
instance  as  security  for  the  payment  of  three  notes,  payable 
in  six  months,  and  bearing  date  about  the  same  time  with  the 
deed,  in  January,  1810.  Afterwards,  on  the  twenty-seventh 
of  July,  1810,  about  the  time  the  notes  became  due,  other 
notes  were  given  in  lieu  of  them,  and  an  agreement  under 
seal  executed  by  the  defendant,  admitting  that  the  former 
deed  was  only  held  as  security,  and  if  the  substituted  notes 
were  paid,  the  deed  was  to  be  given  up,  and  the  lots  recon- 
veyed.  This  agreement  was  never  registered.  The  Chan- 
cellor remarks,^  this  agreement,  though  not  registered,  "  is  to 
be  considered  in  connection  with  the  deed,  and  relates  back 
to  its  date,  so  as  to  render  the  deed  from  its  commencement 
what  it  was  intended  to  be  by  the  parties,  a  mere  mortgage 
securing  the  payment  of  the  notes.  As  a  mortgage,  the  deed 
and  the  subsequent  agreement  ought  to  have  been  registered, 
to  protect  the  land  against  the  title  of  a  subsequent  bond  fide 
purchaser.  This  is  the  language  of  the  statute  concerning 
the  registry  of  mortgages  ;  and  recording  the  deed,  as  a  deed, 
was  of  no  avail  in  this  case,  for  the  plaintiff  was  not  bound 
to  search  the  record  of  deeds,  in  order  to  be  protected  against 
the  operation  of  a  mortgage."  Upon  these  grounds  it  was 
held,  that  the  title  of  the  plaintiff",  who  claimed  under  a  sub- 
sequent conveyance  from  the  grantor  in  trust  to  pay  debts, 
should  prevail  over  that  of  the  defendant,  although  a  schedule 
annexed  to  such  conveyance  stated  that  "  the  title  to  the  fifty 

1  James  v.  Johnson,  6  Johns.  Ch.  432.  «  2  Johns.  Ch.  l89. 

-  2  Johns.  Ch.  182. 


CH.  II.]  DEFEASANCES.  41 

lots  is  in  the  name  of  the  defendant,  given  as  collateral  security 
to  pay  certain  notes."  To  charge  the  trustee  with  notice, 
there  should  have  been  a  statement  of  the  amount,  and  num- 
ber, and  times  of  payment  of  the  notes.  The  plaintiff  might 
not  have  inferred,  from  the  schedule,  that  the  defendant  held 
any  thing  more  than  a  nominal  title,  and  perhaps  as  a  mere 
trustee  upon  some  extinguished  debt.  It  was  not  even  said 
to  be  a  subsisting  debt. 

30.  .The  rule,  as  to  the  recording  of  a  defeasance,  applies 
only  to  a  bond  from  the  grantee  to  the  grantor ;  not  to  a  bond 
from  the  grantor  to  the  grantee,  secured  by  the  conveyance. 
Thus,  a  statute  in  Maine  provided,  that  the  title  to  an  estate, 
in  the  possession  of  any  person  other  than  the  party  to  a 
bond,  deed,  or  other  instrument  of  defeasance,  shall  not  be 
affected  by  it  unless  recorded.  Held,  a  bond  made  by  the 
mortgagor  to  the  mortgagee,  and  secured  by  the  mortgage, 
did  not  come  within  this  provision.^ 

30  a.  A  bond  of  defeasance  is  valid  in  Maine  against  an 
attaching  creditor  of  the  grantor,  whose  attachment  was 
made  before  the  Revised  Statutes,  and  who  at  the  time  of 
attachment  had  express  or  implied  notice  of  the  bond.^ 

1  Noyes  V.  Sturdivant,  6  Slicpl.  104.        2  M'Laughlin  v.  Shepherd,  32  Maine,  143. 


42 


THE    LAW   OF   MORTGAGES. 


CH.  III. 


CHAPTER  III. 


PAROL   DEFEASANCES. 


"Whether  a  mortgage  can  be  created 
by  parol  agreement,  or  proved  by  parol 
evidence.     Doctrines  of  law  and  equity 


upon  the  subject, 
ted  States. 


Practice  in  the  Uni- 


1.  The  rules  stated  in  the  last  chapter,  in  relation  to  defea- 
sances, are  alike  applicable  in  courts  of  law  and  of  equity ; 
giving  to  a  deed  and  defeasance  the  same  operation  and 
effect,  in  all  respects,  as  to  a  mortgage,  made  by  a  single  in- 
strument. In  addition  to  this  weU-settled  principle,  courts 
of  chancery  have  sometimes  adopted  the  further  one,  that 
in  equity  an  absolute  deed  may  be  shown  to  have  been  given 
as  security,  and  thus  made  to  operate  as  a  mortgage,  by  any 
instrument  in  writing,  though  not  under  seal,  and  even  by 
parol  evidence.  It  has  been  said,'  the  fact  of  a  deed's  being 
given  as  security  determines  its  character,  not  the  evidence  of 
the  fact.  Also,  that  parol  evidence  that  a  deed  is  a  mortgage 
is  not  heard  in  contradiction  of  the  deed,  but  in  explanation  of 
the  transaction,  to  prevent  the  perpetration  of  fraud  by  the 
mortgagee.2  (a) 


1  Miami,  &c.  v.  Bank,  &c.,  Wright, 
249. 

2  Bank,  &c.  v.  Sprigg,  1  McL.  183, 


184.    See  Hughes  v.  Edwards,  9  Wheat. 
489  ;  Morris  v.  Kixon,  1  How.  118. 


(a)  So  it  is  said,  (Holmes  r.  Fresh,  9  Mis.  201,)  that  an  absolute  deed  is 
not  to  be  treated  as  a  mortgage,  unless  all  parties,  not  the  grantor  alone,  so 
considered  it.  So,  that  the  treatment  of  an  absolute  deed  as  conditional  by 
the  (jrantee,  makes  it  a  mortgage.  Nichols  v.  llcynolds,  1  Ang.  (R.  I.)  30. 
So  it  has  been  held,  that  taking  judgment  for  the  amount  of  the  considera- 
tion of  a  deed,  is  evidence  to  show  it  a  mortgage.  Ilamet  v.  Dundass.  4 
IJarr,  178.  But  it  has  been  held,  that  an  absolute  deed  cannot  be  turned 
into  a  mortgage  by  private  minutes  made  by  the  grantee.  Thomaston,  &c. 
V.  Stimpson,  8  Shepl.  195. 


CH.  III.]  PAROL   DEFEASANCES.  43 

2.  It  is  to  be  observed,  however,  that  this  rule  seems  to  be 
a  departure  from  that  established  principle  of  evidence  above 
referred  to,  which  excludes  parol  proofs,  to  control  or  vary 
written  instruments.  In  general,  the  rules  of  evidence  are  the 
same  in  law  and  equity.  Their  jurisdiction  and  power  are 
different,  in  reference  to  facts  and  circumstances  which  have 
been  legally  proved ;  but  the  principles  which  govern  the 
means  of  proof  are  substantially  the  same.  "  Equity  foUows 
the  law."  Blackstone  says  : '  —  "  The  rules  of  property,  rules 
of  evidence,  and  rules  of  interpretation  in  both  comets  are,  or 
should  be,  exactly  the  same."  Again :  ^  —  "  Both  courts  will 
equitably  construe,  but  neither  pretends  to  control  or  change 
a  lawful  stipulation  or  engagement."  The  only  deviation,  in 
a  court  of  equity,  from  the  rules  of  evidence  adopted  in 
courts  of  law,  is  thus  pointed  out  by  the  same  author :  ^ 
"  When  facts,  or  their  leading  circumstances,  rest  only  in  the 
knowledge  of  the  party,  a  court  of  equity  applies  itself  to 
his  conscience,  and  purges  him  upon  oath  with  regard  to  the 
truth  of  the  transaction  ;  and,  that  being  once  discovered,  the 
judgment  is  the  same  in  equity  as  it  would  have  been  at  law." 
So  Judge  Story  says :  ^ — "  The  modes  of  seeking'  and  granting 
relief  in  equity  are  also  di^erent  from  those  of  courts  of 
common  law.  The  latter  proceed  to  the  trial  of  contested 
facts  by  means  of  a  jury ;  and  the  evidence  is  generally  to  be 
drawn,  not  from  the  parties,  but  from  third  persons,  who  are 
disinterested  witnesses.  But  courts  of  equity  try  causes 
without  a  jury ;  and  they  address  themselves  to  the  con- 
science of  the  defendant,  and  require  him  to  answer  upon  his 
oath  the  matters  of  fact  stated  in  the  bill,  if  they  are  within 
his  knowledge  ;  and  he  is  compellable  to  give  a  full  account 
of  all  such  facts,  with  all  their  circumstances,  without  evasion 
or  equivocation ;  and  the  testimony  of  other  witnesses  also 
may  be  taken,  to  confirm  or  to  refute  the  facts  so  alleged." 
The  following  remarks  of  the  same  author,  in  other  connec- 


1  3  Comm.  434.  3  ib.  437. 

2  Ib.  435.  •  4  1  Comm.  on  Eq.  29. 


44  THE  LAW   OF  MORTGAGES.  [CH.  III. 

tions,  would  seem  to  indicate,  that  he  does  not  regard  this 
peculiarity  in  the  practice  of  a  court  of  equity,  as  any  depart- 
ure from  the  general  rule  of  law  with  regard  to  parol  evidence. 
He  says  :  ^ — "  Relief  will  be  granted  in  cases  of  written  instru- 
ments "  (for  mistake)  "  only  where  there  is  a  plain  mistake, 
clearly  made  out  by  satisfactory  proofs.  The  rule,  as  to 
rejecting  parol  evidence  to  contradict  written  agreements,  is 
by  no  means  confined  to  such  cases,"  (within  the  statute  of 
frauds.)  "  It  is  founded  upon  the  ground,  that  the  written 
instrument  furnishes  better  evidence  of  the  deliberate  inten- 
tion of  the  parties,  than  any  parol  proof  can  supply."  The 
same  author  remarks :  ^ —  "As  to  what  constitutes  a  mortgage, 
there  is  no  difficulty  whatever  in  courts  of  equity,  although 
there  may  be  technical  embarrassments  in  courts  of  law. 
The  particular  form  or  words  of  the  conveyance  are  unim- 
portant ;  and  it  may  be  laid  down  as  a  general  rule,  subject 
to  few  exceptions,  that  whenever  a  conveyance,  assignment, 
or  other  instrument,  transferring  an  estate,  is  originally 
intended  between  the  parties  as  a  security  for  money,  or  for 
any  other  incumbrance,  whether  this  intention  appear  from 
the  same  instrument,  or  from  any  other,  it  is  always  considered 
in  equity  as  a  mortgage.  Eveji  parol  evidence  is  admissible 
in  some  cases,  as  in  cases  of  fraud,  accident,  and  mistake,  to 
show  that  a  conveyance,  absolute  on  its  face,  was  intended 
between  the  parties  to  be  a  mere  mortgage  or  security  for 
money."  [b) 

1  1  Comm.  on  Eq.  173,  174.  *  2  Comm.  on  Eq.  335. 


Qj)  In  Morris  v.  Nixon,  (1  How.  118,)  tlie  bill  charged  a  fraudulent 
attempt  to  liold  property  unconditionally,  under  a  deed  absolute  in  form,  but 
intended  as  a  mortgage ;  and  parol  evidence  was  admitted,  that  the  parties 
met  upon  the  footing  of  borrowing  and  lending,  with  an  offer  to  secure  the 
lender  by  a  mortgage.  It  also  appeared,  that  a  bond  was  given  to  the  lender. 
Held,  a  mortgage  in  equity,  unless  some  subsequent  bargain  of  a  different 
nature  were  proved. 


CH.  III.]  PAROL    DEFEASANCES.  45 

3.  Mr.  Greenleaf  says  :  ^  —  "If  a  grantee  fraudulently 
attempts  to  convert  into  an  absolute  sale  that  which  was 
originally  meant  to  be  a  security  for  a  loan,  the  original  design 
of  the  conveyance,  though  contrary  to  the  terms  of  the  writ- 
ing, may  be  shown  by  parol." 

4.  The  same  writer  elsewhere  remarks :  ^  —  "  K  the  language 
of  the  deed  is  plainly  that  of  an  intent  to  make  a  mortgage, 
it  is  decisive  ;  and  if  the  parties  had  a  different  intent,  the 
mistake  is  relievable  only  in  equity,  upon  a  bill  specially  for 
that  purpose.  But  if  the  deed  is  in  terms  absolute,  or  doubt- 
ful in  meaning,  it  may  be  shown  by  parol  evidence  of  the 
circumstances  to  have  been  intended  for  a  mortgage." 

5.  He  further  says  '.^  —  "  There  are  three  descriptions  of  cases 
which  are  treated  as  mortgages  in  courts  of  equity.  Fnst, 
where  the  relation  of  debtor  and  creditor,  in  respect  of  the 
money  which  formed  the  consideration  of  the  conveyance,  is 
still  subsisting.  This  relation  is  essential  to  every  mortgage, 
founded  on  the  agreement  of  the  parties.  Thus,  a  convey- 
ance to  the  creditor,  in  trust  to  satisfy  his  own  demand,  is  a 
mortgage,  (c)  Secondly,  cases  of  fraud  on  the  part  of  the 
creditor,  or  of  such  misconduct  as  ought  in  equity  to  admit 
the  debtor  to  a  right  to  redeem  the  land.  Thus,  a  purchaser 
at  a  sheriff's  sale,  under  a  contract  with  the  debtor  that  he 
may  redeem,  will  be  regarded  only  as  a  mortgage.  Thirdly, 
cases,  where  by  accident  or  mistake  an  absolute  conveyance 
was  made,  when  only  a  mortgage  was  intended.  In  all  these 
cases,  parol  evidence  is  admissible  to  show  the  actual  trans- 
action and  the  circumstances  of  the  case.     Where  the  deed 

*  1  Greenl.  Ev.  431.  '  lb.  86,  n. 

*  2  Greenl.  Cruise,  80,  n. 


(c)  So,  on  the  other  hand,  where  one  person  took  a  mortgage  in  the  name 
of  another,  declaring  that  he  intended  the  mortgage  for  the  benefit  of  the 
latter,  and  that  the  principal  should  be  his  after  his  own  death,  and  received 
the  interest  during  his  life  ;  it  was  held,  that  after  his  death  the  mortgage 
belonged  to  the  other  person.     Benbow  i\  Townsend,  1  My.  &  K.  506. 


46  THE   LAW   OF   MORTGAGES.  [CH.  III. 

is  absolute  in  its  terms,  but  the  grantor  claims  it  to  be  in 
truth  only  a  mortgage,  the  burden  of  proof  is  on  him,  to  show 
the  real  intent  of  the  parties,  and  that  the  present  form  of  the 
transaction  arose  from  ignorance,  accident,  mistake,  fraud,  or 
undue  advantage  taken  of  his  situation." 

6.  There  can  be  no  doubt  of  the  admissibility  of  parol  evi- 
dence to  prove  an  absolute  deed  a  mortgage,  under  any  of 
the  circumstances  stated  by  Mr.  Greenleaf.  Mistake,  surprise^ 
and  fraud,  (to  which,  perhaps,  should  be  added,  trust,^  are 
special  grounds  of  equity  jurisdiction  ;  and  may  in  all  other 
cases,  as  well  as  the  case  of  mortgages,  be  proved  by  parol 
evidence,  notwithstanding  the  existence  of  a  written  agree- 
ment between  the  parties,  because  the  general  rule  of  evidence, 
above  referred  to,  is  controlled  by  these  alleged  reasons  for 
equitable  relief.  It  will  be  seen,  that  in  some  cases  the  admis- 
sion of  parol  evidence  to  prove  a  mortgage  has  not  been  thus 
restricted.  The  reasons  for  thus  restricting  it,  however,  have 
been  forcibly  set  forth  by  learned  judges,  even,  in  some 
instances,  where  they  have  been  compelled  by  authority  to 
decide  against  their  own  convictions. 

7.  The  early  English  cases  upon  this  subject  are  mostly 
predicated  upon  some  one  of  the  special  grounds  above 
referred  to ;  and,  where  the  general  rule  alone  has  been  appli- 
cable, parol  evidence  has  been  rejected. 

8.  In  Jason  v.  Eyres,^  divers  proofs  touching  parol  declar- 
ations were  offered  and  read  on  both  sides,  of  which  the 
Court  would  take  no  notice,  but  rejected  them. 

9.  In  Joynes  v.  Statham,^  an  agreement  for  a  mortgage 
was  drawn  by  the  mortgagee,  the  mortgagor  being  able  only 
to  make  his  mark,  and  the  mortgagee  omitted  to  insert  a 
covenant  for  redemption.  Upon  a  bill  of  foreclosure,  the 
Court  permitted  the  mortgagor  to  read  evidence  to  show  the 
omission.  The  Lord  Chancellor  said:  — "  Suppose  an  agree- 
ment for  a  mortgage  drawn  by  the  mortgagee,  the  mortgagor 
being  a  marksman,  and  the  mortgagee  omit  to  insert  a  cove- 

1  2  Cha,  Cas.  35.  2  3  ^tk.  387. 


CH.  III.]  PAROL  DEFEASANCES.  47 

nant  for  redemption,  and  then  brings  a  bill  to  foreclose ;  shaU 
not  the  mortgagor  be  at  liberty  in  this  court,  upon  reading 
evidence,  to  show  the  omission  ?  " 

10.  In  the  case  of  Maxwell  v.  Montacute,i  a  person  agreed 
to  lend  money  on  mortgage,  and  it  was  proposed  that  the 
borrower  should  make  an  absolute  deed,  taking  a  defeasance 
from  the  grantee.  The  deed  was  executed,  but  the  grantee 
refused  to  give  back  a  defeasance.  Lord  Nottingham  ad- 
mitted parol  evidence  of  the  agreement,  and  decreed  in  favor 
of  the  mortgagor. 

11.  In  Walker  v.  Walker,^  Lord  Hardwicke  remarked :  — 
"  Suppose  a  person  who  advances  money  should,  after  the 
borrower  has  executed  the  absolute  conveyance,  refuse  to 
execute  the  defeasance,  will  not  this  Court  reUeve  against  the 
fraud  ?  " 

12.  Parol  evidence  has  been  received  of  an  absolute  gran- 
tee's demanding  and  receiving  interest;  this  being  considered 
not  a  variation  of  the  agreement,  but  an  explanation  of  what 
it  was  meant  to  be.^ 

13.  Where  the  plaintiff  brought  a  bill  for  reconveyance  of 
an  estate,  upon  repayment  of  the  consideration  named  in  the 
deed,  and  the  defendant  in  his  answer  denied  any  right  of 
redemption,  but  admitted  an  agreement  to  hold  in  trust  for 
the  plaintiff's  wife,  &c.,  after  repayment  of  the  consideration  ; 
the  Court  decreed  an  execution  of  such  trust.* 

14.  The  doctrine  upon  this  subject  in  Massachusetts  has 
been  well  expressed,  as  follows ;  more  particularly  w4th  refer- 
ence to  instruments  not  under  seal,  offered  as  defeasances, 
but,  of  course,  applicable  a  fortiori  to  mere  verbal  agree- 
ments. "  In  chancery,  whenever  it  appears  from  written 
evidence,  that  land  is  conveyed  as  a  pledge  to  secure  the  pay- 
ment of  money,  the  conveyance  will  be  treated  as  a  mort- 
gage, in  whatever  form  the  land  was  pledged ;  and  if  we  had 
all  the  equity  powers  of  a  court  of  chancery,  I  should  be 

1  Free.  Ch.  526.  3  i  Pow.  151,  rr. 

-  2  Atk.  99.     See  also  Young  v.  *  Hampton  v.  Spencer,  2  Vern.  288  ; 

Peachy,  2  Atk.  257.  Cottington  v.  Fletcher,  2  Atk.  155. 


48  THE   LAW   OF   MORTGAGES.  [CH.  III. 

satisfied  that  the  conveyance  in  this  case,  with  the  written 
(unsealed)  contract  of  reconveyance,  would  be  deemed  in 
equity  a  mortgage,  and  the  grantee  (grantor)  would  be 
allowed  to  redeem.  But  the  equity  powers  of  this  Court  are 
derived  from  statute,  and  are  extremely  limited.  We  can 
relieve  mortgagors  only  in  cases  where  the  lands  are  granted 
on  condition,  by  force  of  any  deed  of  mortgage,  or  bargain 
and  sale  with  defeasance.  Now  a  defeasance  of  any  instru- 
ment of  conveyance  must  be  of  as  high  a  nature  as  the  con- 
veyance, must  be  executed  at  the  same  time,  and  is  to  be 
considered  as  a  part  of  it ;  so  that  the  conveyance  and  de- 
feasance must  be  taken  together,  and  considered  as  parts  of 
one  contract.  If,  therefore,  the  conveyance  is  by  deed,  the 
defeasance  must  be  by  deed." 

"  The  counsel  for  the  tenant  referred  to  the  statute  of  1802, 
c.  33,  which  provides  that  no  conveyance  of  any  land,  unless 
for  a  term  less  than  seven  years,  shall  be  defeated  or  incum- 
bered by  any  bond  or  other  deed,  or  instrument  of  defeasance, 
unless  they  are  registered.  This  provision  canno.t  avail  to 
enlarge  our  jurisdiction,  which  was  not  within  the  purview 
of  the  act.  What  shall  be  deemed  an  instrument  of  defea- 
sance, must  still  be  determined  upon  the  principles  of  the 
common  law."  ^ 

15.  The  same  doctrine  has  been  thus  expressed  in  a  sub- 
sequent case  in  Massachusetts.  "  The  object  of  this  bill 
would  seem  to  be,  to  devest  the  mortgagee's  estate  by  parol 
evidence  of  a  promise  founded  on  no  legal  consideration.  If 
here  were  written  evidence,  the  want  of  consideration  would 
be  fatal  to  the  claim.  And  without  such  evidence,  it  would 
be  unhinging  our  whole  system  of  titles  in  real  estate,  to  de- 
feat the  operation  of  a  legal  instrument  under  seal,  in  this 
way.     We  are  called  on  to  enjoin  against  the  use  of  a  mort- 

1  Per  I'arsuns,    Cli.   J.     Kclleran  v.  Flint?;.  Sheldon,  13  Muss.  443 ;  Saun- 

Brown,  4  Mass.  443.     The  correctness  dors  v.  Frost,  5  Pick.  259;  Bodwell  i;. 

of  this  decision  has  never  heen  qucs-  Webster,  13  Pick.  413;  Boyd  v.  Stone, 

tioned.    22  Pick.  .530.    See  ch.  18,  s^"  ;  11  Mass.  342. 


CH.  III.]  PAROL  DEFEASANCES.  49 

gage  deed,  by  verbal  proof  that  the  respondent  had  given  up 
his  estate.     The  proposition  is  self-evidently  false.^  (d) 

15  a.  In  Maine,  parol  evidence  is  inadmissible  to  reduce 
an  absolute  deed  to  a  conditional  one,  or  to  show  that  it  was 
intended  merely  as  a  trust.^ 

16.  In  New  York,  this  question  has  often  arisen,  both  at 
law  and  in  equity,  and  has  given  rise  to  various  and  conflict- 
ing decisions. 

17.  In  Moses  v.  Murgatroyd,^  where  an  assignment  was  in 
form  absolute,  but  the  assignee  in  his  answer  admitted  it  to 
be  otherwise,  parol  evidence  was  received. 

18.  In  Marks  v.  Pell,'*  which  was  a  bill  to  redeem,  the 
complainant  relied  upon  certain  confessions  of  the  defendant, 
the  grantee  ;  but  the  Court  decided  that  the  evidence  was 
insufficient^  the  defendant  having  been  seventeen  years  in  the 
peaceable  occupation  of  the  premises  as  apparent  owner,  (e) 

19.  In  Stevens  v.  Cooper,*^  where  several  parcels  of  land 
were  mortgaged,  it  was  held,  that  the  mortgagor  or  a  pur- 
chaser from  him  could  not  set  up  a  parol  agreement  made  at 
the  time  of  the  mortgage,  that  in  case  the  mortgagor  should 
sell  either  of  the  lots,  the  mortgagee  would  release  such  lot 
from  the  mortgage,  on  being  paid  so  much  per  acre  by  the 
purchaser. 

20.  In  Strong  v.  Stewart,^  it  was  held,  that  parol  evidence 
is  admissible  that  the  defendant  fraudulently  attempted  to 
convert  a  loan  into  a  sale,  when  a  mortgage  was  intended. 

1  Per  Parker,  Cli.  J.     Hunt  v.        ^  1  Johns.  Ch.  119.         5  ib.  405. 
Maynard,  6  Pick.  492.  *  1  Johns.  Ch.  599.         6  4  joi^ns.  Ch.  167. 

2"Ellis  V.  Higgins,  32  Maine,  34. 


(d)  In  1736,  an  estate  was  conveyed  by  a  deed  in  form  absolute.  In  1 742, 
the  grantee  conveyed  by  a  deed,  which  recited  that  the  second  grantee  had 
purchased  the  first  grantor's  right  of  redemption  in  the  estate.  Held,  the 
recital  raised  no  presumption  that  the  former  deed  was  a  mortgage.  King 
V.  Little,  1  Cush.  436. 

((?)  Admissions  of  the  grantee,  with  accompanying  circumstances,  were 
held  sufficient,  in  Mclntire  v.  Humphreys,  1  Hoffm.  Ch.  31. 
VOL.    I.  5 


50  THE  LAW   OF   MORTGAGES.  [CH.  III. 

21.  In  Jackson  v.  Jackson/  it  was  held,  that  where  a  mort- 
gage is  conditioned  for  the  payment  of  money,  evidence  is 
inadmissible  of  its  being  actually  given  to  indemnify  the 
mortgagee  as  bail  for  the  mortgagor,  and  that  no  damage 
has  been  thereby  incurred.  So  also  of  declarations  by  the 
mortgagee,  that  the  mortgage  was  not  a  lien,  unless  a  sub- 
sequent mortgagee  was  thereby  misled. 

22.  In  Whittick  v.  Kane,^  parol  evidence  was  held  admis- 
sible to  show  a  deed  a  mortgage,  but  not  as  against  bond  fide 
purchasers  without  notice. 

23.  In  Patchin  v.  Pierce,^  parol  evidence  was  held  inad- 
missible at  law,  to  show  that  the  sum  intended  to  be  secured 
was  less  than  that  mentioned  in  the  deed.  Chief  Justice 
Nelson  remarked :  — "  An  absolute  deed  may  in  equity  be 
turned  into  a  mortgage  by  parol  proof ;  but  that  is  on  the 
assumption  of  fraud  in  the  grantee,  upon  which  ground  the 
action  of  the  Court  is  sustained.  If  there  is  a  mistake  in  the 
mortgage  as  to  the  amount  of  indebtedness  of  the  mortgagor, 
the  remedy,  as  in  all  cases  of  this  kind,  is  to  be  sought  in  a 
court  of  equity." 

24.  In  Van  Buren  v.  Olmstead,^  it  is  held,  that  an  execu- 
tion purchaser  may  redeem,  where  an  absolute  purchase  is 
shown  by  parol  to  have  been  a  mortgage. 

25.  In  Holmes  v.  Grant,^  it  is  held,  that,  in  general,  where 
a  contract  and  conveyance  are  made  upon  a  negotiation  for 
a  loan,  equity  will  treat  it  as  a  mortgage,  whatever  may  be 
the  form,  if  the  lender  agree  to  receive  back  his  money  with 
legal  interest,  or  a  larger  amount  within  a  certain  time,  and 
to  reconvey ;  if  it  appear  that  the  real  transaction  was  a  loan. 
And  gross  inadequacy  of  price  is  a  strong  circumstance  in 
favor  of  this  construction. 

26.  In  Swart  v.  Service,*^  it  was  held  that  a  defendant  in 
ejectment  may  set  up  the  defence,  that  a  deed  absolute  in 
form  was  in  fact  a  mortgage,  and  the  mortgage  debt  paid  by 

1  5  Cow.  173.  8  12  Wend.  61.  ^  g  Paige,  243. 

'  1  l'aif,'c,  202.     See  Walton  *  5  Paige,  9.  «  21  Wend.  36. 

V.  Cronly,  14  Wond.  63. 


CH.  III.]  PAROL  DEFEASANCES.  51 

the  mortgagor,  and  may  offer  parol  evidence  of  these  facts, 
without  connecting  himself  with  the  title  of  the  mortgagor. 

27.  In  this  case,^  Cowen,  J.,  remarks :  —  "It  has  often  been 
held  in  the  courts  of  equity  of  this  State,  that  a  deed,  though 
absolute  on  its  face,  may  by  parol  evidence  be  shown  to  have 
been  in  fact  a  mortgage  in  the  terms  offered  here ;  and  the 
same  doctrine  was  held  by  this  Court  in  Roach  v.  Cosine,^ 
and  Walton  v.  Cronly's  Administrator,^  equally  applicable  to 
a  court  of  law,  and  has,  it  seems,  ceased  to  be  the  subject  of 
a  contest ;  for  no  objection  to  the  doctrine  is  now  made. 
For  one,  I  was  always  at  a  loss  to  see  on  what  principle  the 
doctrine  could  be  rested,  either  at  law  or  in  equity,  unless 
fraud  or  mistake  were  shown  in  obtaining  an  absolute  deed, 
where  it  should  have  been  a  mortgage.  In  either  case,  the 
deed  might  be  rectified  in  equity ;  and  perhaps  even  at  law 
in  this  State,  where  mortgages  stand  on  much  the  same  foot- 
ing in  both  courts.  Short  of  that,  the  evidence  is  a  direct 
contradiction  of  the  deed ;  and  I  am  not  aware  that  it  has 
ever  been  allowed  in  any  other  courts  of  equity  or  law.  But 
with  us  the  doctrine  is  settled,  and  I  am  not  disposed  to 
examine  its  foundations,  at  least  without  the  advantage  of 
discussion." 

28.  In  the  same  case,  Mr.  Justice  Bronson,  dissenting,  re- 
marked : *  —  "I  cannot  agree  with  my  brethren,  in  following 
one  or  two  recent  cases,  which  hold  that  an  absolute  deed 
can  be  tiurned  into  a  mortgage  in  a  court  of  law,  by  parol 
evidence.  Where  the  transaction  was  intended  as  a  mort- 
gage, and  through  fraud  or  mistake,  the  conveyance  has 
been  made  absolute  in  its  terms,  a  court  of  equity,  acting 
upon  well  established  principles,  can  reform  the  deed.  But 
this  will  only  be  done  on  a  direct  and  appropriate  proceed- 
ing for  that  purpose,  and  after  such  ample  notice  to  aU  par- 
ties in  interest,  as  will  tend  most  effectually  to  guard  against 
surprise,  fraud,  and  false  swearing.  And,  besides,  a  court  of 
equity  can  and  will  protect  third   persons  who  may  have 

1  21  Wend.  38.    -  9  Wend.  227.     3  14  Wend.  63.     *  21  Wend.  39. 


52  THE   LAW   OP  MORTGAGES.  [CH.   III. 

parted  with  their  money  on  the  faith  of  the  deed.  But  a 
court  of  law  has  neither  power  nor  process  to  reform  a  deed. 
If  parol  evidence  to  contradict  or  insert  a  condition  in  the 
conveyance  can  be  received  at  all,  it  must,  of  necessity,  be 
in  a  collateral  proceeding  ;  and  it  must  be  received  whenever 
either  party  chooses  to  offer  it.  It  can  be  given  without 
notice,  and  without  the  means  of  guarding  against  the  ob- 
vious danger  of  fraud,  surprise,  and  perjury.  And  beyond 
this  :  when  a  court  of  law  turns  an  absolute  deed  into  a 
mortgage,  it  has  no  power  to  protect  a  bond  fide  purchaser. 
Other  mischiefs  will  be  likely  to  result  from  admitting  such 
evidence ;  but,  without  attempting,  at  this  time,  to  point 
them  out,  I  shall  content  myself  with  dissenting  from  what 
I  deem  a  new  and  very  dangerous  doctrine." 

29.  In  Eckford  v.  DeKay,^  the  Chief  Justice,  in  giving  the 
opinion  of  the  Court,  remarked,  that  the  particular  recital  of 
the  indebtedness,  as  the  consideration  for  the  land  conveyed, 
was  one  of  the  strongest  indications  that  the  parties  in- 
tended an  absolute  deed.  If  the  consideration  had  been 
stated  generally,  the  fact  of  its  being  received  in  payment  of 
this  particular  debt,  must  have  been  proved  aliunde^  by  a 
written  receipt  or  parol  evidence  ;  whereas,  here  it  appeared 
on  the  face  of  the  deed. 

30.  In  the  case  of  Webb  v.  Rice,^  the  plaintiff  claimed 
under  a  warranty  deed  from  one  Moore,  and  the  defendant 
under  a  subsequent  warranty  deed  from  the  same  person. 
The  plaintiff's  deed  was  duly  recorded,  as  such.  The  de- 
fendant offered  parol  evidence,  to  prove  the  plaintiff's  deed  a 
mortgage,  of  certain  declarations  of  the  plaintiff,  subsequent 
to  his  deed,  importing  an  agreement  on  his  part  to  restore 
the  land  upon  certain  payments  to  be  made  by  Moore,  but 
not  definitely  showing  the  terms  of  such  agreement.  Held, 
the  evidence  was  competent  and  sufficient  to  defeat  the 
action.  Bronson,  J.,  again  dissented,  upon  substantially  the 
same  grounds  as  in  the  former  case. 

'  26  Wend,  39.     See  Brown  v.  Dewey,  2  Barb.  Sup.  Ct.  28.  ^  i  Hill,  606. 


CH.   III.]  PAROL  DEFEASANCES.  53 

30  a.  In  a  late  case  it  is  said,  parties  to  a  deed,  absolute  on 
its  face,  or  their  privies,  cannot,  by  evidence,  vary  its  terms,  or 
show  that,  in  fact,  it  was  a  mortgage,  and  intended  as  such  ; 
and  this  is  the  rule  in  equity  as  well  as  at  law.^ 

31.  In  Pennsylvania,  in  the  case  of  Peterson  v.  Willing,^ 
parol  evidence  was  admitted  to  prove,  that  a  mortgage  run- 
ning to  one  person  was  intended  as  security  for  another. 
In  the  same  State  it  has  been  held,^  that  if  the  question, 
whether  a  mortgage  or  not,  depend  upon  writings,  it  is  for 
the  court ;  if  upon  parol  evidence,  for  the  jury.  In  another 
case,*  Sergeant,  J.,  remarks  :  —  "  When  it  is  once  ascertained^ 
that  the  conveyance  is  to  be  considered  and  treated  as  a 
mortgage,  then  all  the  consequences  appertaining  in  equity 
to  a  mortgage  are  strictly  observed,  and  the  right  of  redemp- 
tion is  regarded  as  an  inseparable  incident." 

32.  In  New  Hampshire,  as  in  Massachusetts  and  Penn- 
sylvania, the  rule  is  adopted,  that  before  equity  will  ijiterfere 
for  the  relief  of  a  supposed  mortgagor,  the  fact  of  a  mortgage 
must  first  be  established  by  legal  evidence.  In  the  case  of 
Bickford  v.  Daniels,^  Judge  Woodbury  remarks  :  — "  The 
practice  and  decisions  must  have  been  inadvertent,  which 
would  permit  a  court  of  common  law  to  sit  in  chancery  to 
settle  a  question,  which  must  be  settled  or  agreed  before 
they  are  empowered  to  apply  any  chancery  principles  to  the 
case."  (/) 

33.  In  North  Carolina,  although  a  deed,  absolute  on  its 
face,  cannot  be  turned  into  a  mortgage,  by  parol  evidence  of 
a  concurrent  agreement  to  that  effect ;  it  may  be,  by  evi- 

1  Taylor  v.  Baldwin,  10  Barb.  582.  *  Jaques  v.  Weeks,  7  Watts,  268. 

=  3  Dal.  506.  6  2  N.  H.  73.     See  Runlet  v.  Otis,  2 

MVharf  r.    Howell,   5    Binn.    499.  N.  H.  167;  Clark  v.  Hobbs,  11  N.  11. 

Ace.  Carter  v.  Carter,  5  Tex.  93.  122. 


(/)  So,  it  is  said  by  Judge  Story :  —  "A  court  of  law  may  be  compelled,  in 
many  cases,  to  say  that  there  is  no  mortgage,  ■when  a  court  of  equity  would 
not  hesitate  a  moment  in  pronouncing  that  there  is  an  equitable  mortgage." 
Flagg  V.  Mann,  2  Sumn.  527. 

5* 


54  THE   LAW   OF  MORTGAGES.  [CH.   III. 

dence  of  facts  and  circumstances,  which,  to  the  apprehen- 
sion of  men  versed  in  business,  and  judicial  minds,  are  in- 
compatible with  the  idea  of  a  purchase,  and  leave  no  fair 
doubt  that  a  security  was  intended.'  The  omission  of  a 
clause  of  redemption  must  be  alleged  to  have  occurred  by- 
ignorance,  mistake,  fraud,  or  undue  advantage,  such  as  gross 
inadequacy  of  price.^ 

34.  Conveyance  for  forty  dollars,  of  an  interest  in  a  gold 
mine,  proved  to  be  worth  four  hundred  dollars.  The  grantor 
was,  at  the  time,  in  great  distress  for  money,  and  the  alleged 
price  was  not  paid  at  the  preparation  or  execution  of  the 
deed,  nor  any  security  given  for  it.  The  grantees,  having 
afterwards  sold  the  interest  for  four  hundred  dollars,  retained 
forty  dollars,  and  paid  the  grantor  sixty  dollars  more  from 
the  proceeds.  The  grantor  declared  that  the  conveyance 
was  made  in  trust,  in  presence  of  the  grantees,  who  did  not 
deny  it.  After  the  deed,  the  grantor  remained  in  possession, 
as  before,  taking  the  profits.     Held,  a  mortgage.^ 

85.  In  Indiana,  in  the  case  of  Conwell  v.  Evill,*  the  com- 
plainant brought  a  bill  in  equity  to  redeem  certain  premises, 
which  he  had  conveyed  to  the  defendant  by  an  absolute 
deed.  The  bill  set  forth,  that  the  deed  was  intended  for  a 
mortgage  ;  but  the  answer  expressly  denied  it.  It  was  held, 
that  though  the  intention  alleged  might  be  proved  by  parol 
evidence,  such  evidence,  to  be  effectual,  must  be  very  clear 
and  decisive ;  and  that  evidence  of  the  defendant's  admis- 
sions should  be  received  with  great  caution.  It  was  further 
held,  that  proof  of  the  property's  having  cost  the  plaintiff 
about  three  times  as  much  as  the  defendant  paid  for  it,  and 
of  the  plaintiff's  having  retained  possession  two  years  after 
the  conveyance,  did  not  warrant  a   presumption  that  the 


'  Blackwcll  V.  Ovc'i-l)y,  6  Ired.  E(i.  J  Blackwcll  v.  Overliy,  6  Ircd.  Eq.  38. 

38  ;  McLaurin  v.  Wri},rht,  2  ircd.  Cli.  *  4  Blackf.  67.     Sec  Blair  v.  Bass,  4 

94  ;  Elliott  v.   Maxwell,   7   Ired.  Eq.  Blackf.  539  ;  Aborn  v.  Burnett,  2  Blac'.-.f. 

246  ;  Sellers  v.  Stalayc,  II).  13.  101. 

•■'  Kelly  ;;.  Bryan,  6  Ired.  283.     Sec 
Strcator  v.  Jones,  1  Mur.  449. 


CH.   III.]  PAROL  DEFEASANCES.  55 

deed  was  a  mortgage,  against  the  form  of  the  deed  and  the 
answer  of  the  defendant. 

36.  In  Vermont,  it  is  well  settled,  that  a  court  of  chancery- 
will  treat  an  absolute  deed  of  real  estate,  given  to  secure  the 
payment  of  a  debt,  as  a  mortgage,  as  between  the  imme- 
diate parties,  especially  if  the  grantor  remains  in  possession, 
though  the  defeasance  rests  wholly  in  parol.' 

37.  In  this  State,  the  rule  proceeds  upon  the  ground,  that 
when  there  is  an  attempt  to  set  up  such  an  instrument  as  an 
absolute  conveyance,  there  is  a  fraudulent  application  or  use 
made  of  it ;  and  this  is  a  proper  ground  upon  which  chan- 
cery may  proceed.^  (g) 

38.  In  Connecticut,  the  following  case  has  been  very  re- 
cently decided.  A  deed  was  made  with  the  following  con- 
dition :  "  In  case pays  to the  sum  of  $1,600,  with 

interest,  &c.,  on  or  before  the  1st  of  January,  1843,  then 
this  deed  shall  be  void,"  &c.  The  premises  being  afterwards 
mortgaged  a  second  time,  in  a  bill  for  foreclosure,  brought 
by  the  first  mortgagee,  parol  evidence  was  offered  to  prove, 
that  immediately  before  the  execution  of  the  deed  to  him, 
there  was  a  settlement  of  their  concerns  between  him  and 
the  mortgagor,  and  about  eleven  hundred  dollars  found  to  be 
due ;  that  he  then  agreed  to  advance  enough  more  to  make 
up  sixteen  hundred  dollars,  surrendering  all  the  previous  evi- 

1  Campbell  v.  Worthington,  6  Verm.  ^  13  Verm.  349. 

448  ;  Baxter  v.  Willey,  9  Verm.  280  ; 
Wright  V.  Bates,  13  Verm.  348  ;  Mott 
V.  Harrington,  12  Verm.  119. 


(g)  A  testator  conveyed  a  farm  to  the  defendant,  taking  back  a  bond 
and  mortgage.  The  executor  brings  a  bill  in  equity  to  compel  performance 
df  the  bond,  according  to  the  plaintiff's  construction  thereof  The  answer 
set  forth  the  bond  and  mortgage,  and  a  performance  of  the  condition.  Held, 
the  question  of  the  construction  as  well  as  performance  of  the  bond  was  to 
be  tried  at  law,  and  a  bill  in  equity  did  not  lie.  Washburn  v.  Titus,  9 
Verm.  211.  The  admission  of  an  absolute  grantee,  that  the  deed  was  made 
for  a  debt  due  him,  is  insufficient  to  make  it  a  mortgage.  Bigelow  v.  Top- 
liff,  25  Verm.  273. 


56  THE   LAW   OF  MORTGAGES.  [CH.  III. 

deuces  of  debt,  and  taldng  a  mortgage  for  the  whole ;  which 
arrangement  was  effected  by  the  mortgage ;  and  that  the 
mortgagee  had  no  other  security.  Held,  parol  evidence  of 
these  facts  was  admissible,  being  consistent  with  the  terms 
of  the  deed.i 

39.  The  Supreme  Court  of  the  United  States  remark,  as 
follows  :  —  "A  deed,  absolute  on  the  face  of  it,  for  property, 
offered  to  secure  a  loan  in  a  case  in  which  the  parties  origi- 
nally met  upon  the  footing  of  borrowing  and  lending,  will  be 
considered  a  deed  in  the  nature  of  a  mortgage,  to  secure  a 
loan,  though  another  consideration  shall  be  in  the  recital  of 
the  deed  than  the  loan,  unless  it  shall  be  proved  that  the  par- 
ties afterwards  bargained  for  the  property  independently  of 
the  loan  ;  or,  if  it  shall  appear  that  the  chief  inducement  of 
the  grantor,  in  making  the  deed,  was  to  procure  the  loan ;  or 
that  the  grantee,  after  the  execution  of  the  conveyance, 
treated  the  money  which  he  had  advanced,  as  a  substantial 
part  of  the  consideration,  and  not  as  a  loan."  ^ 

40.  So,  it  has  been  held  in  the  Circuit  Court  of  the  Uni- 
ted States,  that  where  a  deed  is  in  form  absolute,  in  equity 
it  may  be  proved  to  be  a  mortgage,  by  admissions  of  the 
grantee  that  it  was  such,  and  that  a  defeasance  was  to  be 
made  and  filed  with  it ;  by  proof  of  moneys  paid  by  the 
grantor,  corresponding  in  amount  with  interest  rather  than 
rent ;  of  his  possession,  long  subsequent  to  the  deed  ;  of  the 
relation  of  debtor  and  creditor  between  the  parties  ;  and  of 
the  excess  of  value  of  the  land  over  the  sum  paid.  The 
Statute  of  Frauds  is  not  applicable.^  (h) 

1  Bacon  v.  Brown,  19  Conn.  29.  1  How.  127.  Sec  Taylor  v.  Luther,  2 
Sec  Brainerd  v.  Brainerd,   15  Conn.     Sumn.  228. 

575.  '-^  Bcntlcy  v.  riielps,  2  Woodb.  &  Min. 

2  Per  Wayne,  J. ;  Morris  v.  Nixon,    426. 


(h)  It  may  be  seen,  from  the  following  additional  citations,  that  the  doc- 
trine upon  this  subject,  in  the  United  States,  is  quite  unsettled,  the  Courts  of 
each  State,  having  apparently  been  governed  in  their  decisions  by  its  own 
local  law  or  practice,  and  by  the  particular  circumstances  of  the  several 
oases  which  have  come  before  them. 


CH.  III.]  PAROL  DEFEASANCES.  57 

The  following  facts  were  held  to  show,  that  a  deed,  absolute  on  its  face, 
could  only  have  been  intended  as  a  mortgage.  The  consideration  expressed 
was  less  than  one  third  the  value  of  the  land,  and  the  grantor  could  then 
have  sold  it  for  its  value  ;  under  the  same  arrangement  under  which  the 
land  was  conveyed,  and  about  the  same  time,  the  grantor  took  a  bill  of  sale, 
absolute  on  its  face,  for  some  perishable  property,  and  it  was  admitted  that 
it  was  only  a  security ;  the  grantee  remained  in  possession  of  the  land  for 
nearly  two  years,  before  It  was  claimed  by  the  grantor,  without  any  charge 
of  rent ;  the  sum  paid  on  the  mortgage  of  the  perishable  estate  exceeded 
the  amount  due  on  that  mortgage  ;  and  the  sum  alleged  as  the  value  of  the 
land,  and  the  purchase-money,  was  the  precise  and  peculiar  fraction  of 
S31.40.     Kemp  v.  Earp,  7  Ired.  Eq  167. 

It  has  been  held,  in  the  same  State,  that  an  answer  in  equity,  accom- 
panied by  other  circumstances,  may  prove  an  absolute  deed  to  be  a  mort- 
gage ;  but  not  parol  declarations  against  the  deed  and  the  answer.  Allen 
V.  McRae,  2,  325.     See  McLauriu  v.  Wright,  4,  94. 

In  Tennessee,  a  defeasance  may  be  proved  by  parol,  or  by  a  subsequent 
bond.     Brown  v.  Wright,  4  Yerg.  57. 

So,  where  a  conveyance  is  made  in  consideration  of  a  preexisting  debt, 
absolute  upon  its  face,  but  it  is  proved  that  there  was  a  condition  existing, 
and  a  part  of  the  same  transaction,  the  Court  will  construe  the  transaction  as 
a  mortgage.  Hinson  v.  Partee,  11  Humph.  587.  See  Scott  v.  Britton,  2 
Yerg.  215  ;  Yarborough  v.  Newell,  10  lb.  376.  But  in  case  of  a  parol  con- 
dition to  a  written  contract,  omitted  by  fraud  or  mistake,  equity  will  not  re- 
form, unless  there  be  full,  clear,  and  unequivocal  proof  Perry  v.  Pearson, 
1  Humph.  431.  See  Overton  v.  Bigelow,  3  Yerg.  513  ;  Zane  v.  Dickerson, 
10  Yerg.  373.  So,  in  Arkansas,  parol  evidence  is  admissible  in  equity. 
Blakemore  v.  Byrnside,  2  Eng.  505.  But  this  is  on  the  assumption  of  fraud. 
Jordan  v.  Fenno,  8  Eng.  593.  So,  in  Illinois.  Hovey  v.  Holcomb,  11  111. 
660.  See  Coates  v.  Woodworth,  13  111.  654  ;  Delahay  v.  McConnell,  4  Scam. 
156.  In  Missouri,  an  absolute  deed  cannot  be  shown  to  be  a  mortgage, 
at  law.  Ilogel  v.  Lindell,  10  Mis.  483.  Parol  evidence  has  been  held  inad- 
missible in  Mississippi.  Watson  v,  Dickens,  12  Sm.  &  Mar.  608.  But,  in  a 
later  case,  it  is  decided,  that  an  absolute  deed  may  be  proved  a  mortgage 
by  a  contemporary  or  subsequent  parol  agreement.  Prewett  v.  Dobbs,  13 
Sm.  &  Mar,  431.  See  Craft  v.  Bullard,  1  S.  &  M.  Ch.  366  ;  Yasser  v. 
Yasser,  23  Miss.  378.  In  Maryland,  in  the  case  of  Watkins  i\  Stockett, 
6  Har.  &  John.  435,  parol  evidence  was  held  inadmissible  of  a  condition, 
unless  in  case  of  fraud,  surprise,  or  mistake.  Ace.  Bend  v.  Susquehanah, 
&c.  6  H.  &  John.  128.  But  in  such  case  it  is  admissible.  Bank  of  West- 
minster V.  Whyte,  1  Maryland,  Ch.  536.  And  it  has  been  since  held,  that 
if  the  intention  of  the  parties  was  to  secure  a  debt,  the  deed  is  a  mortgage. 
Bank,  &c.  v.  W^hyte,  3  Md.  Ch.  508.     In  Texas,  parol  evidence  is  admis- 


58  THE   LAW   OF   MORTGAGES.  [CH.  III. 

sible  to  show  that  a  deed,  absolute  on  its  facBj^was  intended  as  a  mortgage. 
Stamper  v.  Johnson,  3  Texas,  1  ;  Carter  v.  Carter,  5  Texas,  93.  As  to  the 
rule  in  Virginia,  see  Ross  v.  Norvell,  1  Wash.  14.  In  Alabama,  Hudson  v. 
Ishell,  5  St.  &  P.  67  ;  English  v.  Zane,  1  Port.  328  ;  Chapman  v.  Hughes,  14 
Ala.  218;  Bryan  v.  Cowart,  21  Ala.  92.  In  Kentucky,  Murphey  v.  Trigg, 
1  Monr.  72  ;  Lewis  v.  Rolands,  3  Monr.  406  ;  Lindley  v.  Sharp,  7  Monr. 
248  ;  Thompson  v.  Patton,  5  Litt.  74  ;  Reed  v.  Lansdale,  Hardin,  6.  In 
Delaware,  Wadsworth  v.  Loranger,  Ilarring.  Ch.  113.  In  Georgia,  U.  S. 
Dig.  1848,  119.  In  South  Carolina,  except  in  case  of  fraud  or  mistake,  the 
evidence  must  be  clear  and  convincing.  If  the  answer  deny  the  allegations 
of  the  bill,  it  cannot  be  overcome  by  the  testimony  of  one  witness.  Arnold 
V.  Mattison,  3  Rich.  Eq.  153. 

Equity  will  not  relieve  a  grantor  who  makes  an  absolute  deed  to  protect 
the  property  from  his  creditors  ;  nor  his  administrator.    lb. 


CH.   IV.]  REDEMPTION   CANNOT   BE   RESTRICTED. 


59 


CHAPTER  IV. 

DOCTRINE  OF  EQUITY  IN  THE  CONSTRUCTION  OF  THE  CONDITION 
OF  A  MORTGAGE.  RESTRICTION  UPON  THE  RIGHT  OF  REDEMP- 
TION, ETC. 


1.  The  right  of  redemption  cannot  be 
restricted. 

15.  Though  the  condition  is  con- 
tained in  a  separate  defeasance. 

18.  Application  of  the  rule  to  col- 
lateral or  subsequent  negotiations  be- 
tween the  parties. 

21.  Not  applicable  in  case  oi  family 
settlements. 

25.  Exception  in  case  of  corpora- 
tions. 

28.  Release  of  the  equity  of  redemp- 


tion, or  cancelling  of  a  defeasance  ; 
whether  valid. 

44.  Contract  to  pay  more  than  the 
mortgage  debt  and  interest. 

51.  Subsequent  agreement  to  limit 
the  time  of  redemption. 

56.  The  mortgagor  has  the  benefit  of 
any  new  acquisitions  made  by  the  mort- 
gagee. 

GO.  Case  of  Flagg  v.  Mann. 

62.  Conditional  assignment  of  a  mort- 
gage. 


1.  A  MORTGAGE  being  intended  simply  for  security,  and 
the  nature  of  the  transaction  affording  opportunity  and 
temptation  to  the  lender  to  take  advantage  of  the  necessities 
of  the  borrower ;  courts  of  equity  have  strenuously  resisted 
all  attempts  to  abridge  the  right  of  redemption,  and  held 
even  express  agreements  for  that  purpose  to  be  wholly  void  ; 
contrary  to  the  otherwise  universal  principle  —  ^^  modus  et 
conventio  vincunt  legem^  ^  The  maxim  upon  which  they 
proceed  is,  "  once  a  mortgage,  always  a  mortgage."  (a) 
Thus,  it  has  been  held,  (though  under  the  circumstances  of 

'  Coote,  49.     See  Youle  v.  Richards,  Saxt.  534. 


(a)  Unless  it  would  operate  fraudulently  on  subsequent  purchasers  with- 
out notice..  Miami,  &c.,  v.  Bank,  &c.,  Wright,  249.  See  Wilcox  v.  Morris, 
1  Mur.  117;  Stover  v.  Bounds,  1  Ohio,  (State,)  107.  The  civil  law  al- 
lowed no  clog  upon  the  right  of  redemption.  2  Story's  Eq.  §  1019.  An 
agreement,  in  a  mortgage,  or  an  instrument  in  the  nature  of  a  mortgage, 
that,  upon  breach  of  the  condition,  the  property  shall  become  absolute  in 
the  mortgagee,  is  a  nullity.     Walling  v.  Aikin,  1  McMulIau,  Ch.  1. 


60  THE   LAW   OP  MORTGAGES.  [CH.   IV. 

this  particular  case  —  m/ra,  p.  68  —  the  decision  was  after- 
wards reversed,)  that  the  heir  of  the  mortgagor  may  redeem, 
though  the  right  to  redeem  the  mortgage  is,  in  terms,  limited 
to  the  life  of  the  mortgagor  himself,  who  covenants  that  it 
shall  never  be  redeemed  after  his  death.'  So,  a  jointress  or 
assignee  may  redeem,  though  an  express  covenant  limits  the 
right  to  the  heirs  male  of  the  body  of  the  mortgagor.  The 
connection  between  a  mortgage  and  a  right  to  redeem,  has 
been  said  to  be  as  inseparable  as  that  between  a  distress  and 
replevin.^ 

2.  The  rule  thus  stated  has  been  recognized  by  numerous 
and  eminent  judges  in  various  forms,  but  all  embodying  sub- 
stantially the  same  general  principle. 

3.  "  The  law  has  always  contemplated  with  jealousy  any 
attempt  to  evade  its  provisions,  in  respect  to  the  right  of 
redemption  of  estates  conveyed  for  security.  And  while,  by 
reason  of  a  breach  of  the  condition  of  the  deed,  the  estate 
becomes  absolute  in  the  mortgagee  in  law ;  yet  equity  has 
always  preserved  to  the  mortgagor  a  right  of  redemption  of 
the  mortgaged  premises."  ^ 

4.  "  A  very  distinguished  chancellor  said,  a  century  past, 
that  there  had  been  a  constant  contest  between  equity  and 
the  rapacity  of  those  who  had  attempted  to  take  undue 
advantage  of  the  poverty  of  those  with  whom  they  had 
dealings."  ^ 

5.  "  It  is  not  very  material  to  criticize  the  precise  language, 
which  either  party  to  the  suit  employs  in  the  relation  of  the 
transaction,  or  to  stop  long  in  scrutinizing  the  various  propo- 
sitions made,  or  by  which  party  they  were  made.  If  the 
transaction  in  the  first  instance  appears  to  have  been  intended 
as  a  pledge  or  mortgage,  with  a  proviso  for  a  reconveyance 
within  a  certain  time,  such  circumstance  will  vitiate  the  sale, 
and  turn  the  absolute  conveyance  into  a  mortgage,  and  the 

'  Newcomb  v.  Bonham,  1  Vcrn.  7.  *  Per  Huston,  J.,  Iliester  v.  Madiera, 

2  Howard  v.  Harris,  1  Vcrn.  33,  190.      3  W.  &  Scrg.  387-8. 

3  Per  Hubbard,  J.,  Waters  v.  Kandull, 
6  Met.  483. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  61 

proviso  will  be  rejected  as  repugnant  to  the  rule  of  equity, 
that  the  right  of  redemption  cannot  be  limited  or  restrained."  ' 

6.  "  Any  agreement  that  the  assignment  was  to  be  an 
absolute  sale,  without  redemption,  upon  default  of  payment 
on  the  day,  was  unconscientious,  oppressive,  illegal,  and 
void."  2 

7.  "  The  consideration  which  induced  courts  of  equity  to 
adopt  this  maxim,  and  to  reject  provisos  and  agreements, 
converting  that  into  a  sale  which  was  originally  a  mortgage, 
on  a  given  event,  or  on  payment  of  a  further  sum,  was,  that 
if  such  provisos  and  agreement^  were  allowed,  there  would 
have  been  a  door  open  for  the  imposition  of  every  kind  of 
restraint  on  the  equity  of  redemption,  and  thereby  the  bor- 
rower, through  necessity,  would  have  been  driven  to  embrace 
any  terms,  however  unequal  or  cruel ;  which  would  have 
tended  greatly  to  the  furtherance  of  usury,  and  the  conversion 
of  the  equitable  jurisdiction  of  the  Court  into  an  engine  of 
fraud  and  oppression."  ^ 

8.  In  the  case  of  Spurgeon  v.  CoUier,*  Chancellor  North- 
ington  remarked :  —  "  The  policy  of  this  Court  is  not  more 
complete  in  any  part  of  it  than  in  its  protection  of  mortgages  ; 
and,  as  a  general  rule  for  that  purpose,  a  mortgage  once 
redeemable  continues  so  till  some  act  is  done  afresh  by  the 
mortgagor  to  extinguish  the  redemption ;  and  a  man  will  not 
be  suffered  in  conscience  to  fetter  himself  with  a  limitation 
or  restriction  of  his  time  of  redemption.  It  would  ruin  the 
distressed  and  unwary,  and  give  unconscionable  advantage  to 
greedy  and  designing  persons."  The  same  judge  remarked, 
in  the  case  of  Vernon  v.  Bethell :  ^  —  "  This  Court,  as  a  court 
of  conscience,  is  very  jealous  of  taking  securities  for  a  loan, 
and  converting  such  securities  into  purchases ;  and  therefore 
it  is  an  established  rule,  that  a  mortgagee  can  never  provide, 
at  the  time  of  making  the  loan,  for  any  event  or  condition  on 
which  the  equity  of  redemption  shall  be  discharged  and  the 

'  May  V.  Eastin,  2  Port.  414.  '  Pow.  116  a,  n. 

■•'Per  Kent,  Chancellor,  Henry  y.  Davis,  *  1  Etlen,  .59. 

7  Johns.  Cha.  42.  *  2  Eden,  113. 

VOL.  I.  6 


62  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

conveyance  become  absolute.  And  there  is  great  reason  and 
justice  in  this  rule ;  for  necessitous  men  are  not,  truly  speak- 
ing, free  men ;  but,  to  answer  a  present  exigency,  will  submit 
to  any  terms  that  the  crafty  may  impose  upon  them." 

9.  So  with  respect  to  any  express  provision  in  the  mort- 
gage, that  the  mortgagor  shall  not  claim  relief  in  chancery,  it 
is  said :  —  "  Equity  is  part  of  the  law  of  England,  and  there- 
fore it  cannot  in  any  manner  of  way  be  provided  by  agree- 
ment, in  case  of  a  mortgage,  that  the  Court  of  Chancery  should 
not  give  relief.  For  such  an  agreement  would  be  contrary  to 
natural  justice  in  the  creation  of  it,  and  prove  a  general  mis- 
chief, because  every  lender  would  by  this  method  make 
himself  chancellor  in  his  own  case,  and  prevent  the  judgment 
of  the  Court." ' 

10.  In  the  case  of  Jason  v.  Eyres,^  the  right  of  redemption 
was  limited  only  to  the  father,  not  to  his  heir,  who  claimed 
to  redeem.  The  Lord  Chancellor  decreed  it  a  mortgage, 
saying,  that  if  the  father  had  lived  after  three  years,  (the  time 
fixed  for  payment  of  the  money,)  it  could  not  be  denied  but 
he  might  have  redeemed  it;  and  that  no  mortgage,  by  any 
artificial  words,  can  be  altered,  unless  by  subsequent  agree- 
ment. 

11.  In  Bowen  v.  Edwards,^  lands  worth  <£200  per  annum 
were  mortgaged  for  £250,  and  a  deed  was  sealed  for  the 
absolute  sale  of  them,  if  the  money  should  not  be  paid  at  the 
end  of  seven  years.  The  mortgagee,  before  his  death,  exhib- 
ited a  bill  against  the  mortgagor  for  the  land  or  the  money. 
Held,  the  mortgagor  might  redeem  from  the  son  of  the  mort- 
gagee, after  the  seven  years  had  expired. 

12.  In  the  case  of  Howard  v.  Harris,*  Howard  mortgages 
land,  and  the  proviso  for  redemption  was  thus  :  —  "  Provided 
that  I  myself  or  the  heirs  males  of  my  body  may  redeem. 
The  question  was,  whether  his  assignee  should  redeem  it ; 
and  it  was  decreed  he  should  ;  for  if  once  a  mortgage,  always 

>  Treat,  of  Eq.  lib.  1,  c.  1,  §4-  ^1  Rep.  Ch.  222. 

^  2  Clia.  Cas.  33.  *  1  Vein.  33,  190. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  63 

a  mortgage.  In  this  case  part  of  the  mortgaged  estate  hap- 
pened to  be  in  Mrs.  Howard's  jointure,  and  it  was  admitted 
that  she  thereby  was  entitled  to  a  redemption  of  the  whole 
mortgage. 

In  a  note  to  the  above  case  it  is  stated,  that  the  words  of 
the  proviso  are,  "  that  if  he  or  the  heirs  of  his  body  paid  the 
£565,  the  mortgage-money  and  interest  at  two  years'  end, 
the  conveyance  to  be  void."  Then  a  further  sum  of  money 
was  borrowed  by  Howard,  and  the  above-mentioned  proviso 
was  released  by  the  deed,  and  another  proviso  contained  in 
such  last-mentioned  deed,  that  "  if  he  or  the  heirs  of  his  body 
begotten  should  at  a  given  day  therein  mentioned  pay  <£  1,000, 
then,"  &c.  And  the  mortgagor  covenanted  that  no  person 
should  have  the  power  or  benefit  of  redemption  except  him- 
self and  the  heirs  of  his  body. 

13.  In  Sevier  v.  Greenway,'  a  mortgage  was  made  for  one 
thousand  years,  to  secure  <£80,  which  by  assignments  came 
to  the  defendant,  Greenway.  In  November,  1799,  a  convey- 
ance was  made,  reciting  these  facts,  and  that  Greenway  had 
lent  to  the  plaintiff,  then  owning  the  equity  of  redemption, 
the  further  sum  of  £50,  and  had  contracted  to  purchase  the 
mortgaged  property  at  X150,  from  which  Greenway  was  to 
retain  the  X50  and  £80  ;  and  declaring  that  the  plaintiff 
granted  and  released  the  premises  to  the  defendants,  Greenway 
and  Marchant,  their  heirs  and  assigns,  to  the  use  of  Marchant 
during  the  life  of  Greenway,  in  trust  for  him ;  remainder  to 
Greenway  and  his  heirs  ;  provided,  if  the  plaintiff  within  two 
years  wished  to  repurchase,  and  paid  Greenway  <£150  with 
interest,  the  defendants  should  reconvey.  On  the  11th  of 
January,  1800,  articles  of  agreement  were  made,  reciting, 
that  the  plaintiff  was  entitled  to  and  possessed  of  the  prem- 
ises, being  very  much  out  of  repair  ;  and  that,  not  being  able 
to  repair,  he  had  applied  to  Greenway  to  repair  them  at  his 
own  expense ;  that  Greenway  might  do  this,  let  the  premises, 
and  retain  them  till  his  expenses,  with  interest,  should  be 

1  19  Ves.  412. 


64  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

repaid ;  the  plaintiff,  who  had  been  tenant  in  tail,  agreeing  to 
levy  a  fine,  and  Greenway  covenanting  to  repair  the  premises 
standing  upon  mortgage;  and  upon  being  reimbursed  to 
deliver  up  the  articles  to  be  cancelled.  August  12,  1800, 
articles  of  agreement  were  made,  reciting  that  Greenway 
had  expended  X40  in  repairs,  and  the  plaintiff  had  applied  to 
him  for  further  repairs,  and  for  a  further  loan  of  £10,  and 
providing  that  in  consideration  of  this  loan  the  plaintiff  would 
cause  the  tenants  to  quit  the  premises  needing  repairs,  so  that 
Greenway  might  enter  and  repair;  that  Greenway  should 
let  them,  and  receive  the  rents  till  repaid  the  £40,  <£10,  and 
all  sums  to  be  laid  out,  with  interest ;  that  the  plaintiff  should 
not  meddle  with  the  letting  of  the  premises,  or  receipt  of  the 
rents,  till  Greenway  was  fully  paid ;  that  the  proviso  of  1799 
should  be  observed,  and  the  plaintiff  should  not  repurchase 
till  payment  of  the  <£160  and  the  further  sums,  with  interest. 
The  fine  was  levied,  and  Greenway  had  been  long  in  posses- 
sion. The  value  of  the  premises  in  1799  was  variously 
estimated  from  £15  to  £40  per  annum.  The  plaintiff  brings 
a  bill  for  redemption,  and  Greenway  by  his  answer  alleges 
great  improvements,  as  well  as  repairs,  and  claims  as  pur- 
chaser. Per  Sir  William  Grant,  M.  R. :  —  "  If  this  had  rested 
upon  the  conveyance  of  November,  1799,  possession  being 
taken,  I  do  not  see  why  it  should  be  considered  otherwise 
than  as  a  sale.  Much  stress,  however,  need  not  be  laid  upon 
the  circumstances  relating  to  the  taking  possession,  as  the 
agreement  of  January,  1800,  precludes  that  question ;  provid- 
ing, that  a  fine  shall  be  levied  of  the  premises  expressed  to 
be  standing  upon  mortgage ;  and  the  third  instrument  goes 
further,  providing  for  a  further  loan  of  XIO.  I  shall  therefore 
decree  upon  this  as  a  mortgage."  The  accounts  were  accord- 
ingly directed,  with  rests ;  the  defendant  to  be  allowed  for 
repairs  and  lasting  improvements,  and  the  costs  of  taking  the 
accounts  ;  but  having  insisted  on  a  purchase,  no  costs  to  the 
hearing. 

14.  In  Clench  v.  Witherly,^  a  copyhold  estate  was  uncon- 

1  Cas.  Temp.  Finch,  376. 


CH.  IV.]  REDEMPTION  CANNOT   BE  RESTRICTED.  65 

ditionally  surrendered  to  the  use  of  a  third  person,  but  a 
judgment  given  at  the  same  time,  as  further  security,  with  a 
note  in  writing  under  the  hands  of  the  parties  to  the  surren- 
der, agreeing  that  if  the  surrenderor  should  within  a  twelve-' 
month  pay  to  said  third  person  the  consideration-money  of 
the  surrender,  and  all  his  disbursements  for  fines,  he  should 
surrender  back  the  premises  to  the  surrenderor  and  his  heirs, 
and  acknowledge  satisfaction  on  the  judgment.  Upon  a  bill 
brought  sixteen  years  after  the  expiration  of  the  twelve 
months,  held,  the  surrender  and  judgment  were  mere  securities 
for  the  repayment  of  money,  and  a  redemption  was  decreed. 

15.  If  the  condition  for  redemption,  restricted  to  the  joint 
lives  of  the,  parties,  is  contained  in  a  separate  defeasance,  the 
restriction  will  still  be  set  aside. 

16.  Mortgage  for  .£1,000.  A  third  person  offered  to  pay 
off  the  mortgage  and  advance  .£200  more,  and  the  mortgagor 
thereupon  conveyed  absolutely  to  him,  with  the  usual  cove- 
nants, including  a  covenant  for  further  assurance,  and  the 
grantee  by  a  separate  deed  covenanted  to  reconvey  to  the 
grantor  upon  payment  of  the  two  sums  in  their  joint  lives,  it 
being  agreed  that  the  grantor  should  be  tenant  of  the  prem- 
ises at  the  rent  of  £70  per  annum.  The  grantor  was  after- 
wards arrested  at  the  suit  of  the  grantee  for  arrears  of  rent, 
carried  to  prison,  and  thence  removed  by  means  of  the 
grantee  to  the  house  of  another  person,  where  the  grantee 
endeavored  to  persuade  him  to  give  up  the  defeasance.  He 
refused  to  do  so,  but  made  a  bill  of  sale  of  all  his  property 
to  his  son,  and  soon  afterwards  died.  The  son  was  soon 
induced  to  give  up  the  defeasance,  and  the  grantee  then 
claimed  an  absolute  title.  A  redemption  was  decreed,  partly 
upon  the  ground  that  if  a  restriction  upon  the  equity  of 
redemption  were  in  any  case  allowable,  the  conduct  of  the 
defendant  in  this  case  would  in  equity  render  the  right  of 
redemption  absolute,  he  having  prevented  the  exercise  of  the 
right  stipulated  for,  by  fraud,  oppression,  and  imposition.' 

'  Spurgeon  v.  Collier,  1  Ed.  55. 


6Q  THE  LAW   OF   MORTGAGES.  [CH.  IV. 

17.  In  Jaques  v.  Weeks,^  a  stipulation  in  the  defeasance, 
that  on  failure  to  pay  within  one  year  the  defeasance  should 
be  void,  was  held  not  sufficient  to  overrule  the  legal  character 
of  the  instrument  as  a  mortgage,  or  restrict  the  right  of 
redemption  to  one  year. 

17  a.  A.  having  purchased  land  and  taken  a  conveyance 
to  a  surety  for  the  price,  as  indemnity  to  the  surety,  entered 
into  a  contract  with  B.,  by  which  B.  was  to  pay  the  balance 
of  the  purchase-money  remaining  due,  to  take  a  conveyance 
from  the  surety,  and  to  convey  to  A.,  upon  payment  of  the 
money  advanced  by  B.,  at  a  time  specified.  A.  was  to  remain 
in  possession  and  enjoyment  of  the  land  in  the  mean  time, 
paying  a  rent  equal  to  the  interest  of  the  debt  to  B.,  and  to 
make  payment  without  assistance  from  any  one.  Held,  a 
mortgage,  and  that  A.  was  entitled  to  redeem,  though  the 
money  was  not  paid  at  the  day,  without  reference  to  the  source 
whence  he  derived  the  money.^ 

17  b.  An  agreement  to  convey  land  absolutely,  given 
merely  as  security,  will  be  subject  to  the  rule  above  stated, 
and  construed  as  a  mortgage. 

17  c.  The  maker  of  two  notes  gave  an  instrument  to  his 
sureties  on  the  notes,  reciting  that  the  notes  were  given  for 
the  purchase  of  land,  and  then  added :  —  "In  case  I  fail  to  pay 
said  notes,  I  do  bind  myself,  my  heirs,  &c.,  to  convey  to  said 
sureties  the  aforesaid  land."  Held,  a  mortgage,  and,  on  fail- 
ure of  the  principal  to  pay  the  notes,  that  so  much  of  the 
land  as  would  satisfy  the  claim  of  the  sureties  should  be 
sold,  and  that  the  sureties  were  not  entitled  to  an  absolute 
conveyance.^ 

18.  The  unrestricted  right  of  redemption  will  be  extended 
to  transactions  between  the  parties,  in  the  nature  of  security 
for  the  debt,  subsequent  to  the  original  mortgage.  Thus  if 
after  forfeiture  of  a  mortgage,  and  execution  issued  upon  the 
bond  secured  by  it,  other  property  is  conveyed  to  secure  a 

1  7  Wfitts,  261.  3  Courtney  i'.  Scott,  6  Litt.  457. 

2  Walling  V.  Aikin,  1  McMullan,  Ch.  1. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  67 

portion  of  the  debt,  redeemable  on  payment  of  a  certain  sum 
at  a  future  day ;  the  conveyance  will  relate  to  the  original 
transaction,  and  be  held  a  mortgage.  Hence,  if  after  the  day 
of  payment  the  land  is  conveyed  to  a  bond  fide  purchaser, 
even  though  six  years  have  elapsed  since  the  day  of  paym  nt, 
the  mortgagor  will  be  entitled  to  an  account,  and  to  be  cred- 
ited with  the  price  for  which  the  property  was  sold.' 

19.  A  third  person  may  also  have  the  unlimited  right  to 
redeem,  under  certain  circumstances,  although  there  is  no 
direct  mortgage  from  him  to  the  party  of  whom  redemption 
is  claimed. 

20.  One  having  an  equitable  title  to  land,  sold  it,  and 
received  a  part  of  the  price  ;  but,  finding  difficulty  in  obtain- 
ing the  balance,  made  another  sale  to  another  person,  upon 
condition  that  he  would  advance  such  balance,  and  give  the 
first  purchaser  six  months  to  pay  it ;  in  which  case  the  first 
purchaser  was  to  have  the  land,  otherwise  the  second  pur- 
chaser should  have  it.  This  contract  was  approved  by  the 
first  purchaser,  who  accordingly  promised  to  pay  the  money 
to  the  second,  and  soon  afterwards  removed  from  the  land, 
and  the  second  purchaser  took  possession.  The  first  pur- 
chaser, having  failed  to  pay  the  money  within  the  six  months, 
brings  a  bill  in  equity  to  redeem.  Held,  as  there  had  been 
no  treaty  for  a  sale,  nor  any  discussion  concerning  the  ade- 
quacy of  the  price,  which  was  far  less  than  the  real  value,  the 
transaction  constituted  a  mortgage,  and  a  redemption  was 
decreed.2 

21.  It  has  been  held,  in  England,  that  where  a  mortgage  is 
made  to  or  for  a  relative  or  wife,  the  right  of  redemption  will 
not  be  allowed  beyond  the  time  stipulated,  the  circumstances 
raising  a  presumption  that  the  mortgage  was  intended  to  be 
beneficial  to  the  mortgagee.  In  case  of  marriage  settlement, 
non-fulfilment  of  the  condition  is  an  election  to  abide  by  the 
settlement,  and  no  redemption  allowed,  especially  after  the 
mortgagor's  death,  and  against  a  bond  fide  purchaser  from 

'  Bloodgood  V.  Zcily,  2  Caines's  Cas.  ^  Pennington  v.  Ilanby,  4  Munf.  140. 
inEr.  124. 


68  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

the  wife.  It  is  said,'  that  in  these  cases  the  contract  will  be 
considered  as  wearing  a  kind  of  double  aspect ;  and  that 
there  is  no  danger  of  any  fraud  or  practice  against  the  mort- 
gagor, which  is  the  mischief  intended  to  be  prevented  by  the 
maxim,  that  an  estate  cannot  be  a  mortgage  at  one  time, 
and  an  absolute  purchase  at  another. 

22.  Thus  where  one  conveyed  to  a  relation  by  marriage, 
by  an  absolute  deed,  taking  back  another  deed,  which  pro- 
vided that  the  land  might  be  redeemed  during  the  life  of  the 
grantor ;  held,  the  heir  of  the  grantor  could  not  redeem.^ 

23.  In  the  case  of  Tull  v.  Owen,^  a  husband  and  wife 
made  an  absolute  conveyance  of  her  land  by  way  of  sale 
with  fine.  Subsequent  deeds  passed  between  the  parties, 
which  indicated  that  the  original  deeds  were  intended  to 
operate  as  a  mortgage  ;  and  there  was  an  express  recital  of 
the  fact  in  one  of  the  deeds  produced  from  the  possession  of 
the  person  claiming  as  purchaser,  but  not  signed  by  him. 
After  the  lapse  of  many  years,  and  the  death  of  the  wit- 
nesses, the  heir  of  the  wife  brings  a  bill  to  redeem,  upon  the 
ground  that  the  deeds  passed  an  absolute  estate  only  during 
the  life  of  the  husband.  Held,  the  bill  should  not  be  main- 
tained. 

24.  A  conveyance  in  fee  was  made  to  the  husband  of  the 
grantor's  kinswoman,  in  consideration  of  <£  1,000,  with  a 
redemise  for  ninety-nine  years,  if  he  should  so  long  live, 
containing  a  covenant,  that  if  he  should  pay  <£  1,000  with 
interest  at  any  time  during  his  life,  the  grantee  should  recon- 
vey ;  and  if  he  did  not  pay  the  money,  his  heirs,  &c.,  should 
have  no  power  to  redeem.  After  the  grantor's  death,  the 
money  not  having  been  paid,  his  heir  brings  a  bill  to  redeem. 
It  was  held,  in  reversal  of  a  decree  of  Lord  Nottingham,  that 
the  bill  could  not  be  maintained,  for  the  following  reasons :  — 
It  was  proved,  that  the  grantor  intended  in  this  transaction 
to  7nake  a  setllement,  and  to  confer  a  kindness  and  a  benefit 

M  Tow.  127  a.  8  4  Y.  &  Col.  192. 

-  Kiii}^  V.   IJioinley,  2  Abr.  Eq.  595; 
Bonliam  v.  Newcoinlj,  2  Vent.  364.  , 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  69 

upon  a  mortgagee,  in  case  he  should  not  redeem  during  his 
life.  The  right  of  redemption  being  extended  to  the  lifetime 
of  the  grantor,  no  foreclosure  would  have  been  allowed  while 
he  lived,  even  if  the  bargain  had  proved  unfavorable  to  the 
grantee,  by  the  long  continuance  of  his  life ;  hence,  on  the 
other  hand,  no  equity  should  be  raised  to  deprive  the  grantee 
of  the  estate,  upon  his  death.  The  decision  was  afterwards 
affirmed  in  parliament.^ 

25.  An  exception  has  been  allowed  to  the  general  rule 
against  restricting  the  period  of  redemption,  in  the  case  of 
corporations,  whose  charter  provided  for  such  limitation. 
But  the  language  of  the  charter  will  be  strictly  construed  in 
favor  of  the  mortgagor. 

26.  Thus  it  has  been  held  in  New  York,^  that  upon  failure 
of  the  mortgagor,  under  the  act  of  1837,  for  loaning  the 
United  States'  deposit  fund,  to  pay  the  interest  on  the  day  it 
fell  due,  the  loan  commissioners  became  seized  of  an  abso- 
lute estate  in  fee  ;  and  after  the  day  of  sale,  payment  not 
being  made,  the  mortgagor  cannot  maintain  ejectment. 

27.  A  mortgage  was  made  to  a  corporation,  whose  charter 
provided,  that  whenever  the  corporation  should  purchase  real 
estate  on  which  they  had  made  loans,  the  mortgagors  should 
have  the  right  of  redemption,  on  payment  of  the  debt  and 
costs,  so  long  as  it  remained  in  the  hands  of  the  corporation 
unsold.  The  corporation  having  contracted  to  sell  the  prop- 
erty, one  third  of  the  purchase-money  having  been  paid,  and 
possession  taken  by  making  surveys,  &c. ;  held,  the  right  of 
redemption  was  not  thereby  extinguished.  To  produce  this 
effect,  an  actual  conveyance  must  have  been  executed.^ 

28.  Another  application  of  the  same  general  principle,  is 
that  relating  to  a  release  of  the  equity/  of  redemption  to  the 
mortgagee,  or  a  purchase  of  it  by  him  subsequent  to  the 
original  transaction.     Upon  this  subject  Professor  Greenleaf 


1  Bonham  v.  Newcomh,  2  Vent.  3G4 ;         ^  The  Fanners'  &c.  v.  Edwards,  26 
1  Pow.  127  o  ;  Wolstan  v.  Aston,  Hardr.     Wend.  541. 

511. 

2  Olmstead  v.  Elder,  2  Sandf.  Sup.  325. 


70  THE   LAW   OF   MORTGAGES.     '  [CH.  IV. 

remarks  as  follows  : '  — "  The  general  rule  is  well  settled, 
that  the  mortgagee  shall  not,  at  the  time  of  the  loan,  contract 
with  the  mortgagor  for  an  absolute  purchase,  in  case  the 
money  shall  not  be  paid  as  agreed.  The  case  of  Tasburgh  v. 
Echlin  has  been  thought  to  justify  an  exception  to  this  rule, 
where  payment  of  the  debt  and  interest  is  limited  to  a  par- 
ticular period.  But  a  late  writer  remarks,  that  this  case  was 
determined  on  circumstances  so  special,  that  it  is  scarcely  an 
authority  for  any  subsequent  case,  and  is  hardly  applicable 
to  the  point  to  which  it  has  been  adduced."  (b) 

29.  It  is  said,  a  condition  that  if  the  mortgagee,  on  failure 
of  the  mortgagor  to  pay  the  debt  when  due,  pay  him  a  fur- 
ther sum,  the  former  shall  become  absolute  owner,  is  void ; 
though  an  agreement  to  give  the  mortgagee  the  right  of  pre- 
emption, in  case  of  a  sale,  has  been  assumed  to  be  valid. 
Chancellor  Kent,  hovi^ever,  suggests  that  this  agreement,  also, 
would  be  void.2  At  any  rate,  it  will  be  very  strictly  con- 
strued, and  the  fairness  and  value  must  be  shown  by  clear 
and  convincing  proof.  Loose  expressions  of  the  mortgagor, 
that  he  had  received  satisfaction  for  the  land,  without  iden- 
tifying it,  are  insufficient  proof.^  The  mortgagee  will  not 
be  allowed  to  make  use  of  the  incumbrance,  as  a  means  of 
obtaining  the  equity  of  redemption  for  less  than  its  value.'* 

30.  Mortgage  for  .£200,  with  a  bond  conditioned,  that  if 
the  sum  were  not  paid  at  the  day,  and  if  the  mortgagee 
should  then  pay  the  mortgagor  the  further  sum  of  .£78  in 
full  for  the  purchase  of  the  land,  the  bond  should  be  void. 
The  £200  not  being  paid,  and  the  mortgagee  having  paid. 

1  2  Grccnl.  Criiiso,  97  n  ;  1  Tow.  133;  »  Ilolntluc  v.  Gillesi)io,  2  Johns.  CIi. 

Cootf,  ;i(),  33;  Mi-Gan   v.   Marshall,  7  34;   Ilaininomls    r.    Ilopkiiis,   3    Yerj^. 

Iliiiiiph.  121.     Slc  Tliompsou  j;.  iLu'k,  525;  Mclvinstiv  v.  Coiilv,  12  Ala.  078. 

Harriii-.  Cli.  150.  *  Hicks  v.  lliVks,  5  Gill.  &  J.  85. 

-  4  Kent,  142.  * 


(h)  It  has  been  held,  that  mere  iiiadcfjuacy  of  price  is  no  ground  for  set- 
ting aside  a  purchase  of  the  equity  of  redemption  by  the  mortgagee  in  con- 
sideration of  tlie  debt.     Purdie  v.  Millet,  Taml.  28. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  71 

the  <£78 ;  held,  the  infant  heir  of  the  mortgagor  might  re- 
deem.^ 

31.  In  St.  John  v.  Turner,''^  it  was  said  to  be  a  great  objec- 
tion to  the  transaction,  that  the  plaintiff  appeared  to  pay 
nothing  for  the  equity  of  redemption,  but  it  was  thrown  into 
his  bargain. 

32.  A  mortgage  of  anticipation  was  made  of  an  estate  in 
the  West  Indies,  and  upon  an  account  taken,  it  appearing 
that  the  mortgagor  owed  the  mortgagee  a  large  sum,  he 
released  the  equity  to  the  mortgagee  and  his  heirs.  The 
consideration  of  the  conveyance  was  five  guineas ;  no  release 
was  given  of  the  covenant  for  payment  of  the  money ;  and 
the  mortgagee,  while  in  possession,  kept  an  account  as  such ; 
and  both  in  conversation  and  by  letter  stated  himself  to  be  a 
mortgagee  in  possession,  within  twenty  years  from  the  com- 
mencement of  the  suit  to  redeem.  Held,  thirty-three  years 
after  the  release,  the  mortgagor  might  redeem.-^ 

33.  Mr.  Powell  says  :  *  —  "If  the  mortgagor  sells  the  estate 
to  the  mortgagee  for  even  less  than  its  value,  whether  accord- 
ing to  a  stipulation  in  the  mortgage  or  not,  without  any  cir- 
cumstances of  fraud  or  indirect  influence,  it  seems,  equity 
will  not  relieve  him.  If  there  be  two  persons  ready  to 
purchase,  the  mortgagee  and  another,  the  mortgagor  stands 
equally  between  them,  and  if  the  mortgagee  should  refuse  to 
convey  to  another  purchaser,  the  mortgagor  can  compel  him, 
by  applying  the  purchase-money,  to  pay  off  the  mortgage. 
It  can,  therefore,  only  be  for  want  of  a  better  purchaser,  that 
the  mortgagor  can  be  compelled  to  sell  to  the  mortgagee; 
but  courts  view  transactions  even  of  that  sort,  between  mort- 
gagor and  mortgagee,  with  considerable  jealousy,  and  will 
set  aside  sales  of  the  equity  of  redemption,  where,  by  the 
influence  of  his  incumbrance,  the  mortgagee  has  purchased 
for  less  than  others  would  have  given." 


1  Willett  V.  Winncll,  1  Vern.  488.  *  1  Pow.  123  a,  n. ;  Webb  v.  Rorkc, 

•■^  2  Vern.  418.  2  Sili.  &  Lcf.  673  :  Dougherty  v.  McCol- 

8  Vernon  v.  Betliell.  2  Ed.  110.  gan,  6  Gill  &  J.  275. 


72  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

34.  In  Wrixon  v.  Cotter,^  it  was  held,  that  though  the 
mortgagee  cannot,  by  the  mortgage  itself,  or  a  deed  made  at 
the  same  time,  reserve  the  right  of  purchasing  the  estate  at  a 
certain  price,  to  be  paid  the  mortgagor  if  he  shall  not  redeem 
within  a  limited  time ;  yet  he  may  purchase  the  right  of 
redemption,  if  he  does  not  use  the  mortgage  in  inducing  the 
mortgagor  to  part  with  it  for  less  than  its  value. 

35.  So  it  has  been  held,  that  where  a  mortgagee,  after 
recovering  the  land  for  condition  broken,  for  a  further  con- 
sideration obtains  a  release  of  the  equity,  at  the  same  time 
giving  the  mortgagor  a  promise  to  sell  and  convey  on  pay- 
ment of  the  whole  money  within  a  certain  time  ;  at  the  end  of 
this  time  the  mortgagee's  title  becomes  absolute.  The  latter 
bargain  is  considered  as  an  original  contract  to  convey  upon 
certain  terms ;  more  especially,  after  the  lapse  of  so  long  a 
period  as  sixteen  years.^ 

36.  In  the  case  of  Tasburgh  v.  Echlin,^  above  referred  to, 
the  crown,  having  granted  a  patent  for  certain  land  for  a 
term  of  years,  at  a  certain  rent,  granted  another  patent  to 
another  person,  not  noticing  the  former.  The  former  term 
having  nearly  fifty  years  to  run,  and  being  worth  X200  per 
annum,  the  second  patentee,  in  consideration  of  X200,  by 
lease  and  release  conveyed  to  the  first,  with  condition  that 
he  might  reenter  upon  repayment  within  five  years ;  but  on 
failure  of  payment  at  the  time,  the  estate  of  the  grantee 
should  be  absolute  and  indefeasible,  both  in  equity  and  at 
law,  and  the  grantor  forever  debarred  from  all  right  and  relief 
in  equity,  and  the  grantor  hereby  released  forever  his  right  to 
redeem,  on  such  failure.  There  was  no  covenant  to  pay  the 
X2()0.  Th(^  five  years  having  expired,  the  grantee  brings  a 
bill  for  foreclosure,  to  which  the  grantor  never  made  any 
answer  or  defence,  and  it  was  decreed  that  he  should  be 
foreclosed,  unless  the  money  were  paid  upon  a  certain  day. 


1  1  Ridt'.  295.  8  2  Bro.  Tarl.  2G5, 

2  Endswortli   v.  Grifiitli,  2  Abr.  Eq. 
595. 


CH.  IV.]  REDEMPTION   CANNOT   BE  RESTRICTED.,  73 

More  than  thirty  years  afterwards,  the  lands  having  risen  in 
value,  the  heirs  of  the  grantor  bring  a  bill  in  equity  against 
the  heirs  of  the  grantee,  alleging  surprise  and  imposition  in 
procuring  the  decree,  and  praying  redemption.  A  decree 
was  rendered  for  the  plaintiffs,  but  reversed  in  the  House  of 
Lords.  The  grounds  of  argument  for  the  defendants  were, 
the  terms  of  the  conveyance,  waiving  all  right  of  redemption ; 
the  reversionary  character  of  the  estate,  yielding  no  present 
profit,  and  worth  at  the  time  not  over  .£200;  and  the  want 
of  any  covenant  to  pay  the  money,  and  therefore  of  any 
mutuality  in  the  transaction,  which  is  necessary  to  constitute 
a  mortgage. 

37.  One  of  two  joint  tenants  made  a  conveyance  for  X104, 
in  form  absolute,  but  admitted  to  be  a  mortgage.  This  deed 
was  cancelled,  and  another  similar  one  made  for  a  larger 
consideration,  including  the  .£104,  and  covenanting  that  the 
grantor  would  not  make  partition  without  consent  of  the 
grantee.  The  receipts  for  the  money  spoke  of  it  ?iQ  purchase- 
money.  Two  years  after  the  second  deed,  it  was  agreed  that 
the  grantor  should  have  back  the  land,  on  payment  of  prin- 
cipal, interest,  and  costs.  The  other  joint  tenant  being  in 
possession,  the  grantee  recovered  the  land  in  ejectment,  and 
occupied  sixteen  years.  Upon  a  biU  to  redeem,  brought  by 
the  grantor  ;  held,  though  the  covenant  against  partition  was 
a  recognition  of  the  plaintiff's  remaming  interest  in  the  land, 
and  the  first  deed  was  admitted  to  be  a  mortgage,  yet  the 
transaction,  on  the  whole,  was  a  subsequent  agreement  for 
repurchase,  and  after  the  lapse  of  so  many  years,  the  redemp- 
tion was  barred.^ 

38.  Upon  this  subject,  the  Court  in  New  York  remark  as 
follows : — "  I  am  aware  of  no  principle,  which  inhibits  a  mort- 
gagee from  purchasing  in  an  outstanding  title,  and  enforcing 
it  against  his  mortgagor ;  on  the  contrary,  a  defective  title 
must  often  be  cured  in  this  way,  to  avoid  a  loss  of  the  debt. 
Actual  payments  of  prior  incumbrances   entitle  the  mort- 

1  Cottercll  V.  Purchase,  Cas.  Temp.  Tal.  61.     See  Hunt  v.  Tyler,  2  Aiken,  233. 
VOL.    I.  •  7 


74  THE  LAW   OF  MORTGAGES.  [CH.  IV. 

gagee,  in  equity,  to  hold  till  the  mortgagor  shall  reimburse 
them  ;  and  in  some  cases,  if  the  mortgagee  can  get  them  in 
by  assignment,  he  superadds  a  legal  title,  paramount  to  that 
of  the  mortgagor,  and  valid  against  an  ejectment.  The 
effect  of  the  mortgagor's  repaying  the  money  is  merely  to 
avoid  the  effect  of  the  mortgage.  If  the  mortgagee  have 
acquired  .a  paramount  title,  the  act  of  payment  will  not 
enure  as  a  purchase  of  it.  As  between  mortgagee  and  mort- 
gagor, no  estoppel  (of  landlord  and  tenant)  exists  against  the 
latter.  The  mortgagee  is  rather  the  landlord  ;  the  mortgagor 
being  in  strict  law,  considered  as  a  quasi  tenant  at  will. 
Whether  equity  might  not,  in  a  proper  case,  consider  the 
mortgagee  as  a  trustee,  and  on  that  ground  decree  that  he 
shall  stand  as  a  purchaser  for  the  mortgagor's  benefit,  on 
being  reimbursed,  is  another  question."  ^ 

38  a.  So  it  has  been  held  in  that  State,  that  a  mortgagee 
may  by  a  contract  subsequent  to  the  mortgage  purchase  the 
equity  of  redemption  ;  though  the  transaction  will  be  viewed 
with  suspicion. 2 

39.  So  the  Court  in  Massachusetts  remark,  that  a  defea- 
sance may  upon  sufficient  consideration  be  cancelled  as 
between  the  parties,  so  as  to  give  an  absolute  title  to  the 
mortgagee,  the  rights  of  third  parties  not  having  intervened.^ 

39  a.  Thus  where  a  bond  executed  at  the  same  time  with 
the  deed  was  two  years  afterwards  given  up,  and  a  new 
bond  substituted ;  it  was  held,  that  the  latter  constituted  a 
mere  personal  security,  and  the  grantee  became  absolute 
owner.* 

39  b.  But  where  the  demandant  in  a  suit  for  foreclosure 
produced  a  conveyance  to  himself,  and  then  offered  evidence 
of  the  execution  and  existence  of  a  bond  of  defeasance  of  the 
same  date,  and  the  tenant  then  produced  a  bond  of  subse- 
quent date  and  different  conditions  ;  held,  the  latter  was  not 


1  Per  Cowcn,  J.,  Cameron  v.  Irwin,  Harrison  v.  riiillips,  &c.  12  Mass.  4o5 ; 

5  Hill,  280,  281.  Marshall  y.  Stewart,  17  Ohio,  356;  Youle 

'■^  lif^mscn  V.  Hay,  2  Edw.  Ch.  .').'J.5.  v.  llichards,  Saxt.  534. 

■'Trull    V.    Skinner,    17    Tick.    213;  *  Rice  i'.  liice,  4  Pick.  352. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTEICTED.  75 

of  itself  proof  that  the  former  had  been  cancelled  by  agree- 
ment, with  intent  to  render  the  conveyance  absolute.^ 

39  c.  An  assignment  of  such  bond  to  an  assignee  of  the 
mortgagee  does  not  extinguish  the  right  of  redemption ;  the 
bond  being  a  chose  in  action,  not  assignable,  and  the  law  not 
allowing  a  right  of  redemption  to  be  voluntarily  parted  with, 
except  by  the  ordinary  forms  of  conveyance.  Hence,  after 
such  assignment,  a  creditor  of  the  mortgagor  may  acquu-e  a 
title  to  the  land  by  the  levy  of  an  execution.^ 

40.  But  it  is  said,  no  case  can  be  found,  in  which  it  has 
been  determined  that  the  mortgagee  can,  by  force  of  any 
agreement  made  at  the  time  of  creating  the  mortgage,  entitle 
himself,  at  his  own  election,  to  hold  the  estate  free  from  con- 
dition, and  cutting  off  the  right  in  equity  of  the  mortgagor 
to  redeem.  Such  an  agreement  would  not  be  enforced  as 
against  a  mortgagor,  nor  is  it  to  be  confounded  with  a  sale 
upon  condition.'^ 

40  a.  The  Supreme  Court  of  the  United  States  hold,  that 
the  purchase  of  an  equity  of  redemption  from  the  mortgagor, 
by  the  mortgagee  in  possession,  especially  if  the  former  is 
in  needy  circumstances,  is  to  be  carefully  scrutinized  when 
fraud  is  charged ;  and  constructive  fraud,  or  an  unconscien- 
tious advantage,  are  sufficient  in  equity  to  avoid  the  pur- 
chase.* 

40  b.  The  release  of  an  equity  of  redemption  and  surren- 
der of  a  defeasance  by  a  needy  mortgagor,  for  no  considera- 
tion, or  in  consideration  of  the  correction  of  a  mistake  in  the 
amount  due,  which  the  mortgagee  was  bound  in  equity  to 
correct,  the  mortgagee  being  in  possession,  denying  the  right 
to  redeem,  and  having  originally  by  design  so  drawn  the 
defeasance  as  apparently  to  cut  off  the  right  of  redemption 
before  the  time  when  the  equity  was  released ;  will  be  set 
aside  in  equity .^ 


1  Stetson  V.  Gulliver,  2  Cusli.  494.  *  Russell  v.  Southard.  12  How.  139. 

-  Porter  r.  Millet,  9  Mass.  101.  &  Ibid, 

s  Per  Hubbard,  J.,  Waters  i'.  Ran- 
dall, 6  Met.  484. 


76  THE   LAW   OF  MORTGAGES.  [CH.  IV. 

40  c.  But,  the  mortgagor  having  filed  his  bill  to  redeem, 
nearly  twenty  years  after  the  mortgage  became  due,  and 
sixteen  years  after  the  release ;  held,  the  account  of  the  rents 
and  profits  should  be  restricted  to  the  time  of  filing  the  bill.^ 

41.  It  is  said,  in  Kentucky,  a  subsequent  conveyance  by 
the  mortgagor  to  the  mortgagee  "  must  be  fairly  done,  in  a 
transaction  that  will  bear  the  light,  and  upon  a  consideration, 
the  particulars  of  which  the  mortgagee  will  be  able,  at  least, 
to  state,  if  not  to  prove.  It  would  be  strange,  indeed,  if  the 
Court  of  Chancery,  which  so  carefully  guards  the  equity  of 
redemption  from  all  restraints  that  the  party  may  attempt  to 
impose  in  the  mortgage  which  creates  it,  or  in  any  other  con- 
temporaneous deed,  should  thenceforth  abandon  it  to  the 
arts  or  influence  of  the  mortgagee,  who,  having  already  a 
hold  upon  the  property  by  the  original  contract,  comes  into 
every  new  transaction  with  the  mortgagor  with  increased 
advantage."  ^ 

41  a.  Where  a  mortgagee  knowingly  and  understandingly 
cancels  his  mortgage,  taking  instead  of  it  an  absolute  deed ; 
a  second  mortgage  will  have  precedence  of  his  title  under 
such  deed.2 

42.  Where  the  subsequent  purchase  from  the  mortgagor 
is  made  under  an  appraisement  of  the  property,  this  absence 
of  any  unfair  terms  in  the  transaction  will  render  it  legally 
valid. 

43.  In  the  case  of  Austin  v.  Bradley,^  Austin  conveyed 
to  Bradley  certain  lands,  upon  condition  that  the  grantor 
should  indemnify  the  grantee  from  certain  liabilities  on 
his  account.  After  breach  of  condition,  Bradley  agreed  to 
accept  from  Austin  an  absolute  title,  and  Austin  agreed  to 
convey  to  him  by  absolute  deed  of  warranty  at  an  appraised 
value,  the  balance,  if  the  land  was  appraised  to  exceed  the 
debt,  to  be  paid  in  one  year  to  Austin.     Austin  having  died, 

1  Russell  V.  Southard,  12  How.  13'J.  ^  Frazee  v.  Inslee,  1  Green,  Ch.  239. 

'^  Per  Marshall,  J.,  Perkins  v.  Drye,         *  2  Day,  4G6. 
3  Dana,  177  ;  ace.  Slicckell  v.  Hopkins, 
2  Md.  Ch.  8'J;  Adams  v.  McKeiizie,  18 
Ala.  698. 


CH.  IV.]  REDEMPTION   CANNOT  BE  RESTRICTED.  77 

the  balance  was  tendered  to  his  executors  within  the  year, 
and  a  conveyance  demanded.  The  plaintiffs,  children  and 
legatees  of  Austin,  then  file  a  bill  in  chancery  against  Brad- 
ley to  redeem.     Held,  the  petition  should  be  dismissed. 

44.  Upon  the  general  principle  of  protection  to  mortgagors, 
equity  does  not  sanction  an  agreement  to  turn  interest  into 
principal  at  the  end  of  a  specified  period ;  because  it  is  a 
stipulation  for  a  collateral  advantage,  and  because  it  tends  to 
usury,  though  not  actually  usurious.^ 

45.  K  the  mortgagor  agree  by  a  distinct  contract  to  pay 
the  mortgagee  a  sum  over  and  above  the  debt,  interest,  and 
cost ;  such  contract  will  be  set  aside  as  unconscionable ;  for, 
it  is  said,  a  man  shall  not  have  interest  for  his  money,  and  a 
collateral  advantage  besides  for  the  loan  of  it,  or  clog  the 
redemption  with  any  bye  agreement.^  (c) 

46.  A  person,  taking  a  mortgage  as  security  for  a  loan, 
took  from  the  mortgagor,  at  the  same  time,  a  covenant  to 
convey  to  the  mortgagee,  if  he  thought  fit,  certain  ground- 
rents  of  the  same  value.     Upon  a  bill  to  redeem ;  held,  the 

1  Chambers  v.  Goldwin,  9  Vcs.  271 ;        ^  Jennings  v.  Ward,  2  Vern.  520. 
Coote,  501,  502. 


(c)  It  was  stipulated,  in  a  mortgage,  that  upon  failure  to  pay  the  interest, 
the  mortgagee  might  treat  the  mortgage  as  clue,  britig  an  action  upon  it,  and 
also  claim  damages.  Held,  a  valid  agreement.  Ruling  v.  Drexell,  7  Watts, 
126.  An  agreement,  that  the  mortgagee  shall  have  the  use  of  the  property 
instead  of  interest,  is  not  usurious,  unless  such  use  amounts  to  more  than 
legal  interest.  Joyner  v.  Vincent,  4  Dev.  &  B.  512.  Where  a  slave  was 
mortgaged,  and  the  mortgagee  to  have  the  increase,  it  was  held  the  agree- 
ment was  not  usurious,  though  such  increase  exceeded  legal  interest,  if  the 
mortgagee  was  to  take  as  donee,  and  not  on  account  of  the  loan,  and  this 
might  be  shown  by  parol  evidence.  lb.  Where  a  note  is  secured  by  mort- 
gage, the  maker  cannot,  as  against  a  third  person,  owning  the  equity  of 
redemption,  increase  the  charge  upon  the  land  by  confessing  a  judgment, 
and  thus  compounding  the  interest.  McGready  v.  McGready,  17  Mis.  597. 
Where  by  statute  a  penalty  is  imposed  for  omitting  to  make  payment  of 
school  money  loaned ;  it  is  held  to  be  imposed  only  on  the  borrower,  and 
not  secured  by  the  bond  or  mortgage.  Bradley  v.  Snyder,  14  111.  262. 
7* 


78  THE   LAW   OF  MORTGAGES.  [CH.  IV. 

plaintiff  might  redeem  on  paying  the  sum  loaned,  with  inter- 
est and  costs.i 

47.  An  agreement,  that  the  rate  of  interest  shall  be  raised 
if  not  punctually  paid,  is  treated  as  a  penalty,  and  will  be 
relieved  against,  even  in  case  of  gross  default.  But  an 
agreement,  that  on  punctual  payment  the  interest  shall 
abate,  will  be  sustained,  if  strictly  performed ;  not  otherwise.^ 

48.  K  the  increased  rate  of  interest  is  in  consideration  of 
forbearance,  and  not  a  part  of  the  original  agreement,  and  is 
of  reasonable  amount,  it  seems  equity  will  not  relieve.  The 
forbearance  is  treated  as  equivalent  to  a  further  advance. 
But  interest  cannot  be  converted  into  principal  as  against  a 
subsequent  charge,  of  which  the  mortgagee  had  notice.^ 

49.  The  agreement  for  an  abatement  of  interest  will  not 
be  defeated  by  a  single  breach  of  it,  unless  the  terms  require 
this  construction.  Thus  in  the  case  of  Stanhope  v.  Man- 
ners,* it  was  agreed,  that  as  often  as  the  interest  should 
be  paid  half-yearly  on  the  appointed  days,  or  within  three 
months  next  after,  a  certain  deduction  should  be  made.  The 
first  half  year's  interest  was  not  paid  within  the  time,  but 
the  second,  at  the  reduced  rate,  was  tendered  within  the 
time,  and  refused.  Held,  the  agreement  was  not  annulled 
by  the  former  failure,  but  the  construction  should  be,  that 
in  every  instance  where  the  tender  was  made  in  time,  it 
should  be  accepted. 

50.  The  intention  of  the  parties  to  convert  interest  into 
principal  must  clearly  appear  ;  and,  in  general,  by  some 
writing  under  their  hands.  It  is  not  enough  that  an  account 
be  stated  between  them.^ 

51.  An  agreement,  subsequent  to  the  making  of  the  mort- 
gage, between  any  one  interested  as  mortgagee  and  the 
mortgagor  or  his  assignee,  to  limit  the  right  of  redemption 
to  any  certain  time,  is  invalid. 

1  Jennings  v.  Ward,  2  Vcm.  520.  Brown  v.  Barkham,  1  P.  Wms.  f>''i2  ; 

2  Cootc,  511,  512.  See  Manjuis,  &c.  Cootc,  502;  ace.  llaggarty  v.  Allaire, 
V.  Iliggcns,  2  Vcrn.  134;  Mayo  v.  Ju-     &c.  5  Samil'.  230. 

(lah,  5  Munf.  495.  *  2  Ed.  199. 

3  Burton  v.  Slattcry,  5  B.  V.  C  233  ;        ^  Coote,  502. 


CH.  IV.]  REDEMPTION   CANNOT   BE  RESTRICTED.  79 

52.  Bill  in  equity  for  a  foreclosure  by  a  mortgagee  against 
the  mortgagor  and  his  creditors,  having  an  interest  in  the 
right  of  redemption.  A  decree  being  obtained,  the  defend- 
ant, one  of  the  creditors,  paid  and  took  an  assignment  of 
the  mortgage,  and  agreed  with  the  other  creditors,  that  they 
might  redeem  within  a  certain  time.  The  defendant  had 
possession  twenty  years,  and  the  other  creditors  file  a  bill 
for  redemption.  Held,  the  plaintiffs  stood  in  the  confidential 
relation  of  mortgagor  to  the  defendant ;  and  the  decree  not 
being  assigned  to  him,  the  agreement  above  mentioned  was 
void,  and  the  plaintiffs  might  redeem.^ 

53.  The  same  general  principle  has  been  applied  to  the 
case  of  a  lease  firom  mortgagor  to  mortgagee,  which  is  in 
the  nature  of  a  partial  surrender  of  the  equity  of  redemption. 

54.  In  the  case  of  Gubbins  v.  Creed,^  the  heirs  of  a  mort- 
gagor filed  a  bill  against  the  heirs  and  executors  of  the 
mortgagee,  to  set  aside  a  lease  made  by  the  mortgagor  to 
the  mortgagee,  charging  that  it  was  made  at  a  gross  under- 
value, and  in  consequence  of  threats  of  foreclosure.  Upon 
two  issues  of  law,  ordered  by  the  Com-t,  the  jury  negatived 
both  these  averments.  But  Lord  Redesdale  subsequently 
decided,  that  the  issues  at  law  should  not  have  been  ordered, 
and  set  aside  the  lease  as  in  its  nature  usurious  and  contrary 
to  public  policy,  ordering  the  master  to  take  an  account  of 
principal  and  interest,  to  charge  the  defendants  with  the  rent 
up  to  the  first  day  of  payment  after  filing  the  bill,  and  add 
any  sums  paid  for  permanent  improvements,  with  interest. 

55.  In  the  case  of  Wright  v.  Bates,'^  an  absolute  deed  was 
given,  with  a  parol  agreement  to  reconvey  upon  payment 
of  a  certain  sum.  Subsequently  the  grantee  leased  to  the 
grantor,  and  in  order  to  conceal  the  true  nature  of  the  trans- 
action, and  destroy  the  right  of  redemption,  covenanted  to 
reconvey  to  the  grantor  on  payment  of  a  certain  sum  of 
money  by  a  specified  time.  After  this  time  had  elapsed,  he 
conveyed  to  a  third  person  having  notice  of  the  defeasance. 

1  Exton  I'.  Greaves,  1  Vera.  138.  '- 2  Sch.  &  Lef.  214.  »  13  Verm.  341. 


80  THE  LAW   OF  MORTGAGES.  [CH.  IV. 

Held,  the  transaction  constituted  a  mortgage ;  that  the  re- 
lease and  covenant  did  not  impair  the  relation  of  the  parties 
as  mortgagor  and  mortgagee;  and  that  the  second  grantee 
should  reconvey  to  the  mortgagor  on  payment  of  the  sum  due 
in  equity  upon  the  morgage.  Bennett,  J.,  said  :  ^  —  "  When 
there  is  an  attempt  to  set  up  such  an  instrument  as  an  abso- 
lute conveyance,  there  is  a  fraudulent  application  or  use 
made  of  it ;  and  this  is  a  proper  ground  upon  which  chan- 
cery may  proceed." 

56.  Upon  the  same  general  principle,  where  a  mortgagee 
obtains  the  renewal  of  a  lease  or  any  other  advantage  in 
consequence  of  his  mortgage,  the  mortgagor,  upon  redemp- 
tion, is  entitled  to  the  benefit  of  it.^  (d)  "  The  law  does  not 
permit  the  mortgagor  to  be  tolled  of  his  equity  of  redemption 
by  such  a  shift."  ^ 

57.  The  plaintiff  assigned  to  the  defendant,  as  security  for 
a  debt,  the  lease  of  a  farm.  Subsequently,  a  contract  was 
made,  by  which  the  plaintiff,  in  consideration  of  a  sum  ex- 
pressed but  not  paid,  agreed  to  give  up  to  the  defendant  half 
of  the  farm,  and  the  defendant  took  possession,  surrendered 
the  lease  to  the  landlord,  and  took  a  new  lease.  Held,  the 
plaintiff  might  redeem  the  whole  premises,  and  have  the 
entire  benefit  of  the  new  lease.^ 

58.  Upon  a  similar  principle,  where  a  mortgagor's  estate 
has  been  sold  on  execution,  while  he  was  in  possession,  a 
subsequent  mortgagee  cannot  overreach  the  purchaser's  right 
of  redemption  by  an  absolute  release  to  him  from  the  mort- 
gagor, and  buying  in  an  old  incumbrance ;  but  the  estate 

1  13  Verm.  349.  "  Per  Bennett,  J.,  Wright  v.  Bates, 

'^  Slee  V.  Mauhuttan,  &c.  1  Paige,  48 ;     13  Verm.  350. 
Coote,  42'J.  *  llolridj^c  v.  Gillespie,  2  Johns.  Ch.  30. 


(J)  The  general  pi-Inciple  stated  in  tlic  text  has  been  applied  in  favor  of 
a  mortgagee,  as  well  as  a  mortgagor.  Thus,  if  the  mortgagor  allow  the  land 
to  be  sold  for  taxes,  and  buy  it,  the  mortgagee  has  the  benefit  of  the  title. 
Fuller  V.  Ilodgdon,  25  Maine,  243. 


CH.  IV.]  REDEMPTION  CANNOT  BE  RESTRICTED.  81 

will  be  charged  wdth  the  actual  expense  of  buying  in  such 
incumbrance.^ 

59.  In  the  case  of  Price  v.  Price,^  the  conveyance  was 
in  form  absolute,  but  the  real  consideration  was  a  sum  of 
money  paid  to  the  creditors  of  the  grantor.  Upon  a  bill  filed 
for  reconveyance,  the  grantee  claimed  the  benefit  of  the  secu- 
rities as  mortgagee.  The  Court  held,  that  he  had  mixed  up 
the  characters  of  trustee,  mortgagee,  and  agent,  and  decreed 
an  account  without  allowing  interest  on  either  side  ;  and 
though  a  small  balance  was  found  due  him,  yet  on  further 
directions  the  Court  refused  to  allow  him  interest  on  it,  and 
decreed  a  reconveyance  and  payment  of  the  balance  then 
become  due  from  him,  and,  he  having  lost  some  of  his 
vouchers,  refused  him  the  costs  of  takmg  the  account,  (e) 

60.  The  following  case,  somewhat  remarkable  and  noto- 
rious for  the  amount  of  property  involved,  the  length  of  time 
and  variety  of  forms  in  which  it  was  litigated,  and  the  learn- 
ing and  ability  displayed  in  its  discussion  and  adjudication, 
serves  to  illustrates  many  of  the  topics  considered  in  this 
chapter. 

61.  On  or  about  June  13,  1823,  one  Frye,  as  guardian,  by 
license  of  Court,  conveyed  certain  lands  to  Luther  Richard- 
son, who,  on  the  14th  of  May,  1825,  quitclaimed  them,  sub- 
ject to  incumbrances,  to   Prentiss   Richardson,  his  brother, 

1  Miami,  &c.  v.  Bank,  &c.,  Wright,  249.  ^  15  l.  j.  Clianc.  13  N.  S. 


(e)  An  execution  in  favor  of  a  bank  was  levied  upon  certain  slaves  of  the 
debtor,  who,  being  about  to  satisfy  it  by  payment  of  the  notes  of  that  bank 
—  worth  only  fifty  per  cent,  of  their  par  value  —  was  prevented  from  doing 
so  by  the  representations  of  a  third  person,  that  such  payment  would  not  be 
good.  The  latter,  however,  by  an  agreement  with  the  debtor,  paid  the  exe- 
cution in  this  money,  and  took  one  of  the  slaves,  with  a  condition  of  restora- 
tion in  three  months,  upon  repayment  of  the  sum  advanced.  Upon  a  bill  in 
equity,  filed  after  the  expiration  of  that  time,  the  Court  held  the  transaction 
was  a  mortgage,  and  decreed  a  redemption  upon  payment  of  one  half  the 
nominal  value  of  the  bank-notes  by  which  the  execution  was  discharged. 
May  V.  Eastin,  2  Port.  414. 


82  THE   LAW   OF   MORTGAGES.  [cH.  IV. 

upon  a  secret  parol  trust  for  himself.     May  6,  1826,  the  two 
Richardsons,  with  the  wife  of  Prentiss,  for  the  nominal  con- 
sideration of  $2,000,  quitclaimed  to  Walker  and  Fisher,  who 
gave  back  a  bond  for  $10,000  to  Luther,  reciting  that  he  had 
quitclaimed  to  the  obligors,  and  stipulating  to  reconvey  to 
him  whenever,  within  five  years,  he  should  repay  what  they 
expended  in  discharging  incumbrances  and  making  improve- 
ments.    At  the  same  time  they  leased  to  him  a  part  of  the 
land  for  five  years,  for  the  annual  rent  of  one  cent,  unless 
there  should  be  a  previous  redemption,  agreeably  to  the  bond. 
On  or  before  May  13,  1831,  the  land  was  claimed  by  Frye's 
heirs,  upon  the   ground  of  an  invalidity  in  the  guardian's 
sale.     Soon  afterwards,  the  plaintifi"  and  Mann,  one  of  the 
defendants,  agreed   by  parol  to  purchase  at  their  joint  ex- 
pense, and  for  their  joint  use,  the  title  of  Luther,  and  to 
extinguish  the  claims  of  Walker  and  Fisher,  and  of  the  Frye 
heirs,  on  their  equal  and  joint  account ;  which  agreement 
was   never   abandoned.      May  13,  1831,   the    plaintiff  and 
Mann,  in  pursuance  of  this  agreement,  received  a  quitclaim 
deed  from   Luther,   and   an  assignment  of  the  bond  from 
Walker   and   Fisher.      July  27,  1831,   Walker  and  Fisher 
quitclaimed  to  Mann  alone  ;  and  afterwards  the  Frye  heirs 
quitclaimed  to  Adams.     August  6,  1831,  Mann  and  Adams 
severally  quitclaimed  to  each  other  one  moiety  of  the  prem- 
ises and  of  their  respective  interests  therein.    August  8, 1831, 
Mann  quitclaimed  his  moiety  to   Fuller  for   $40,000,  and 
Fuller  mortgaged  back  to  Mann,  as  security  for  four  notes 
of  $10,000  each,  given  for  the  price.     The  plaintiff  brings  a 
bill  in  equity,  to  set  aside  the  deeds  of  Mann  to   Adams 
and  to  Fuller,  as  a  fraud  upon  the  plaintiff,  and  for  a  recon- 
veyance of  one  moiety  of  the  premises  to  the  plaintiff,  upon 
payment  by  him  of  a  moiety  of  the  sums  paid  in  perfecting 
the  title.     Held,  the  deed  to  Walker  and  Fisher  and  their 
accompanying  bond,  being   parts  of  the  same  transaction, 
were  to  be  treated  as  if  contained  in  one  instrument ;  and 
being   in   reality    designed    for    security,   and    showing   an 


CH.  IV.]  REDEMPTION   CANNOT  BE   RESTRICTED.  83 

attempt  to  evade  the  law  relating  to  mortgages,  constituted 
an  equitable  mortgage  to  Walker  and  Fisher  for  their  ad- 
vances, and  not  a  conditional  purchase,  which  requires-  a 
sale  for  A'^aluable  consideration ;  that  this  construction  was 
fortified  by  the  fact,  that  the  grantees  were  not  to  have 
immediate  possession,  and  that  a  fair  price  for  a  purchase  of 
the  land  was  not  paid ;  that  Luther,  when  he  conveyed  to 
Flagg  and  Mann,  had  an  equity  of  redemption  sufficient  in 
a  court  of  equity  to  make  the  parties  tenants  in  common, 
and  create  between  them  a  privity  of  title  and  estate ;  and  a 
decree  for  relief  of  the  plaintiff  was  passed,  having  reference 
to  the  respective  rights  and  liabiJities  of  the  several  defend- 
ants, as  depending  upon  their  various  interests  in  the  prop- 
erty, according  to  the  above  statement.^ 

62.  Substantially  the  same  rules  have  been  applied  to  the 
conditional  assignment  of  a  mortgage  itself,  wliich  have  been 
stated  above,  as  established  for  the  protection  of  mortgagors 
against  any  restriction  of  the  right  of  redemption. 

63.  Assignment  of  a  mortgage,  provided,  that  if  certain 
receipts  shall  amount  to  $300,  the  assignee  shall  reassign, 
and  account  for  the  excess  above  that  sum  ;  if  they  fall  short 
of  such  sum,  and  unless  the  assignor  in  one  week  pay  the 
deficiency,  the  asssignment  to  be  absolute.  The  receipts 
were  less  than  $300.  Held,  equity  would  decree  a  redemp- 
tion upon  making  up  this  sum,  the  transaction  being  a  mort- 
gage or  pledge,  not  a  conditional  sale.^ 

64.  In  the  case  of  Clark  v.  Henry ,'^  the  plaintiff  was  in- 
debted to  the  defendant  upon  promissory  notes  for  $225, 
and  executed  to  him  an  assignment,  in  terms  absolute,  of  a 
mortgage  held  by  the  plaintiff  against  one  Davis,  for  $1,065.03. 
The  notes  were  destroyed  by  the  parties,  and  the  defendant 
gave  the  plaintiff  a  written  agreement  to  sell  him  the  mort- 
gage, if  he  would  pay  the  defendant  $225  by  a  certain  day. 
Several  times  previous  to  this  day  the  defendant  declared 

1  riagg  V.  Mann,  2  Suran.  48G.  3  2  Cow.  324;  S,  C.  7  Johns.  Cb.  40. 

'^  Solomon  v.  Wilson,  1  Whart.  241. 


84  THE  LAW   OP  MORTGAGES.  [CH.  IV. 

that  he  held  the  assignment  as  security  for  his  debt.  Pay- 
ment not  being  made  at  the  day,  the  plaintiff  brings  a  bill 
in  equity  to  redeem.  Held,  the  assignment  was  not  a  con- 
ditional sale,  but  a  mortgage ;  and  the  plaintiff  entitled  to 
redeem  upon  payment  of  the  $225,  and  interest.  In  giving 
the  opinion  of  the  Court,  Woodworth,  J.,  remarks  :  ^  —  "  The 
case  warrants  the  inference,  that  Clark  supposed  the  papers 
were  so  drawn  as  to  defeat  the  right  of  redemption,  if  there 
was  a  failure  of  payment,  and  that  the  word  '  sell '  was  in- 
serted, instead  of  the  more  appropriate  term  reassign,  so  as 
thereby  to  obtain  a  mortgage  of  |1,065  for  the  inadequate 
consideration  of  $225.  The  whole  operation  seems  to  be 
devised  for  the  purpose  of  overreaching  an  ignorant  man 
who  could  neither  read  nor  write.  There  cannot,  however, 
be  any  doubt  that  the  writing  executed  by  the  appellant  was 
per  se  a  defeasance  merely.  On  what  terms  was  the  appel- 
lant to  sell  ?  Not  for  the  value  of  the  security,  but  for  the 
amount  of  the  original  debt,  not  equal  to  one  fourth  of  the 
mortgage.  This  speaks  a  language  not  to  be  mistaken. 
The  instrument  must  be  construed  as  a  covenant  to  re- 
assign." 

12  Co^y.  331, 


CH.  v.]  CONDITIONAL   SALE.  85 


CHAPTER  V. 

CONDITIONAL   SALE,   AS   DISTINGUISHED    FROM   A   MORTGAGE. 

1.  There  is  a  certain  description  of  conveyance,  similar  in 
form  to  a  mortgage,  but  to  which  the  rule  against  restricting 
the  right  of  redemption  is  not  applicable  ;  to  wit,  a  sale  vnth 
an  agreement  to  repurchase,  or,  as  it  is  usually  termed,  a  con- 
ditional sale,  {a) 

2.  "  A  mortgage  and  a  conditional  sale  are  nearly  allied  to 
each  other.  The  difference  between  them  is,  that  the  former 
is  a  security  for  a  debt,  and  the  latter  is  a  purchase  for  a 
price  paid,  or  to  be  paid,  to  become  absolute  on  a  particular 
event ;  or  a  purchase  accompanied  by  an  agreement  to  resell 
upon  particular  terms.  The  only  difficulty  is,  to  ascertain 
the  character  of  the  transaction.  When  it  is  once  deter- 
mined to  be  a  mortgage,  all  the  consequences  of  account, 
redemption,  and  the  like,  follow,  notwithstanding  any  stipu- 
lation to  the  contrary.  For  the  power  of  redemption  is  not 
lost  by  any  hfird  conditions ;  nor  shall  it  be  fettered  to  any 
point  of  time,  not  according  to  the  course  of  the  Court."  ^ 

3.  Various  circumstances  have  been  resorted  to,  for  the 
purpose  of  determining  whether  a  particular  conveyance 
should  fall  within  one  t>r  the  other  of  these  classes.  The 
precise  language  used  is  generally  held  of  little  consequence. 
Thus,  the  words  "redeem,"  (b)  "repurchase,"  &c.,  may  have 

1  Per  Ruffin,  J.,  Poindexter  v.  McCannon,  1  Dev.  Eq.  375,  376. 


(a)  The  civil  law  recognized  the  distinction  between  mortgages  and  con- 
ditional sales.     2  Story's  Eq.  §  1019. 

(A)  In  the  case  of  Chambers  v.  liise,  2  Dev.  &  Bat.  Eq.  305,  the  jilaintiff 
brought  a  bill  in  equity  to  redeem  certain  negroes,  transferred  by  him  to 
the  defendant  by  a  common  bill  of  sale,  with  this  condition :  "  If  the  said 

VOL.    I.  8 


gg  THE  LAW   OF  MORTGAGES.  [CH.  V. 

one  or  another  signification,  according  to  the  circumstances 
of  each  case.  The  relative  situation,  and  the  precedent,  ac- 
companying, and  subsequent  acts  of  the  parties  are  regarded 
as  of  much  more  importance.  The  leading  incidents  of  a 
mortgage  are  these :  the  relation  of  debtor  and  creditor,  and 
the  continuance  of  a  debt  between  them ;  retaining  of  pos- 
session by  the  grantor ;  great  excess  of  value  in  the  property 
over  the  consideration  paid;  —  although  this  has  been  held 
not  of  itself  to  raise  the  presumption  of  a  mortgage.  On 
the  other  hand,  the  necessitous  condition  of  the  grantor ;  the 
reservation  of  a  power,  on  his  part,  to  annul  the  bargain ; 
the  lapse  of  a  long  period  before  any  claim  to  redeem ;  the 
approximation  of  the  consideration  paid  to  the  cash  value  of 
the  property ;  the  absence  of  any  agreement  to  repay  the 
purchase-money,(r)  making  the  grantor's  right  to  repurchase, 
and  the  grantee's  right  to  recover  the  price,  mutual  and  re- 
ciprocal ;  are  circumstances  which  favor  the  construction  of 
the  transaction  as  a  conditional  sale.^(f/)      The  question  as 

1  Slec  V.  Manhattan  Co.  1  Paige,  56  ;  Cranch,  218  ;  Dougherty  v.  McColgan, 

Glover  v.  Payn,  19  Wend.  518;  Poin-  6  G.  &  Johns.  275;  Coles  v.  Perry,  7 

dexter  v.  McCannon,  1  Dcv.  Eq.  373  ;  Tex.  109  ;  Russell  v.  Southard,  12  How. 

Bacon  v.  Brown,  19  Conn.  29;  Robin-  139;  Streator  i'.  Jones,  3  Hawks,  423; 

son  V.  Cropsey,  2  Edw.  146  ;  AVright  y.  Hopkins   v.  Stephenson,  1  J.  J.  Marsh, 

Bates,    13    Verm.   350;    3    Atk.    278;  341 ;  Oldham  !\  Hallcy,  2  J.  J.  Marsh, 

Holmes  V.  Grant,  8  Paige,  243  ;  2  Barb.  113;  Edrington  v.  Harper,  3  J.  J.  Marsh, 

Sup.  28 ;  Goodman  v.  Gricrson,  2  Ball  353  ;  Robinson  v.  Farrelly,  16  Ala.  472  ; 

&   B.   274;    Conway  v.  Alexander,  7  Gait  v.  Jackson,  9  Geo.  151. 


Jacob  Hise  is  not  satisfied  with  the  said  negroes,  or  if  the  said  negroes  are 
not  satisfied  with  the  said  Hise,  then  the  said  Chambers  has  privilege  and 
authority  to  redeem  the  said  negroes,  at  any  time  that  he  shall  pay  or  cause 
to  be  paid  to  the  said  Jacob  Hise  the  $300,  or  a  negro  girl  to  the  satisfaction 
of  the  said  Hise."  The  subscribing  witness  deposed,  that  the  parties  intended 
only  what  appeared  on  the  face  of  the  instrument ;  and  there  was  no  evi- 
dence that  the  transaction  was  a  loan.  It  was  held  by  the  Court,  that  the 
paper  was  not  on  its  face  a  mortgage,  and,  there  being  nothing  else  shown 
in  tlic  case  to  make  it  one,  that  the  bill  sliould  be  dismissed. 

(c)  This  fact  is  held  not  to  be  decisive.  Russell  v.  Southard,  12  How. 
139.  Tiie  promise  may  be  a  parol  one.  Hills  v.  Eliot,  16  Mass.  33.  See 
Scott  V.  Britton,  2  Yerg.  215. 

(il)  'J'hc  relation  of  Inndlord  and  tenant  is  consistent  with  that  of  mort- 
gagor and  mortgagee.    Hence  a  lease  does  not  change  a  mortgage  to  a  con- 


CH.  v.]  CONDITIONAL    SALE.  87 

to  the  nature  of  the  conveyance  is  a  question  of  fact  and  in- 
tent for  the  jury.i 

4.  A  sale  with  an  agreement  to  repurchase.^  though  nar- 
rowly watched,  is  construed  like  any  independent  agreement 
between  strangers,  and  the  right  of  redemption  restricted  to 
the  time  appointed.  But  in  equity,  the  transaction  will  al- 
ways be  construed  a  mortgage,  if  possible.^  In  case  of  a 
conditional  sale,  the  title  passes  to  the  vendee,  and  he  has 
the  intermediate  rents  and  profits.^ 

5.  Gibson,  Ch.  J.,  says:^  — "  It  is  too  late  to  say  that  what 
was  intended  to  be  security  for  a  loan  may  become  a  con- 
ditional sale  by  the  accidental  form  of  the  transaction  ;  or, 
that  an  agreement  to  make  it  such,  in  default  of  payment  at 
the  day,  shall  not  be  relieved  against,  or  that  a  jury  are  not 
the  proper  judges  of  the  intention,  or  that  a  purchaser,  with 
a  part  of  the  purchase-money  in  his  hands,  may  be  protected 
beyond  reimbursement." 

1  Gaither   v.    Teaguc,    7    Ired.    460;  Green,  Ch.  264;  Ketchum  v.  Johnson, 

Kunkle  v.  Wolfersberger,  6  Watts,  131 ;  3,  370;  King  v.  Newman,  2  Munf.  40; 

Page  V.  Foster,  7  N.  H.  392.  French  v.  Lyon,  2  Root,  69. 

^4  Kent,  143,  144  ;  Eaton  v.  Green,  '■^  Bennet  v.  Holt,  2  Yerg.  6. 

22  Pick.  529,  530 ;  Turnipseed  v.  Gun-  *  Kunkle  v.  Wolfersberger,  6  Watts, 

ningham,  16  Ala.  501  ;  Scott  v.  Henry,  8  131. 
Eng.   112.     See   Crane   v.  Bonnell,  1 

J— i 

ditional  conveyance.  Kunkle  v.  Wolfersberger,  6  Watts,  131.  An  agree- 
ment for  future  reconveyance  at  an  advanced  price,  at  the  election  of  the 
grantor,  is  no  evidence  of  a  mortgage.  Glover  v.  Payn,  19  Wend.  518. 
Where  all  the  clauses  of  an  instrument  are  consistent  with  a  conditional  sale, 
but  some  inconsistent  with  a  mortgage ;  it  ■will  be  construed  as  being  the 
former,  and  not  the  latter.  Thus,  where  the  agreement,  after  stating  the  re- 
ceipt of  a  certain  sum,  used  the  words  —  "and  put  a  negro  in  his  hands  as 
security ;"  and  also  the  following  words,  "  if  the  money  is  not  paid  at  or  be- 
fore, &c.,  the  said,  &c.,  is  to  have  the  said  negro  for  the  said  "  sum ;  it  was 
held  to  be  a  conditional  sale,  because  the  former  words  might  have  full  effect 
by  construing  the  sale  defeasible  till  the  time  named,  while  the  latter  coidd 
have  no  effect,  unless  after  that  time  the  sale  became  absolute.  Chapman 
v.  Turner,  1  Call,  251.  A  grantor  bound  himself  in  a  large  sum,  as  liqui- 
dated damages,  to  procure  a  release  of  dower,  and  afterwards  wrote  a  letter 
to  his  wife,  requesting  such  release.  Held,  these  facts  did  not  disprove  a 
mortgage.     Russell  v.  Southard,  12  How.  139. 


88  THE   LAW   OF  MORTGAGES.  [CH.  V. 

6.  On  the  other  hand,  in  Floyer  v.  Lavington,^  Lord 
Chancellor  Cowper  remarked,  that  this  Court  had  heretofore 
gone  too  far  in  permitting  redemptions.  In  the  same  case, 
he  further  remarked,^  that  here  several  circumstances  con- 
curred, which,  though  each  of  them  singly  might  not  be  of 
force  to  bar  the  redemption,  yet  all  of  them  joined  together 
were  strong  enough  to  prevail  over  it. 

7.  So,  Chief  Justice  Marshall  says:^  —  "  If  the  vendee  must 
be  restrained  to  his  principal  and  interest,  that  principal  and 
interest  ought  to  be  secure."  "  To  deny  the  power  of  two 
individuals,  capable  of  acting  for  themselves,  to  make  a  con- 
tract for  the  purchase  and  sale  of  lands  defeasible  by  the 
payment  of  money  at  a  future  day,  or,  in  other  words,  to 
make  a  sale  with  a  reservation  to  the  vendor  of  a  right  to 
repurchase  the  same  land  at  a  fixed  price  and  at  a  specified 
time,  would  be  to  transfer  to  the  Court  of  Chancery,  in  a  con- 
siderable degree,  the  guardianship  of  adults  as  well  as  of 
infants." 

8.  So,  it  is  said,  if  parties  intend  an  absolute  sale,  a  con- 
temporaneous agreement  for  a  repurchase,  not  acted  upon, 
will  not,  of  itself,  entitle  the  vendor  to  redeem.* 

9.  So,  in  another  case  it  was  said  :  —  "As  on  the  one  hand 
no  act  of  a  scrivener  can  turn  that  which  was  intended  as  a 
mortgage  into  an  absolute  sale ;  so,  on  the  other,  it  must  not 
be  permitted  to  designing  men  to  turn  a  real,  though  defea- 
sible sale  into  a  mortgage,  without  the  free  consent  of  the 
other  contracting  party."  ^ 

10.  In  the  case  of  McDonald  v.  McLeod,^  Gaston,  J.,  re- 
marks:—  "  It  is  not  questioned  but  that  a  deed,  absolute  upon 
its  face,  may  be  shown  by  extrinsic  facts  to  have  been  exe- 
cuted as  a  security  for  the  payment  of  money,  and  to  have 
put  on  the  form  of  an  absolute  deed  by  reason  of  the  igno- 
rance of  the  draftsman,  or  from  mistake  of  the  parties,  or 


1  1  r.  Wms.  270.  4  Per  Lord  Cottenliam,  5  M.  &  C.  3uC. 

'^  Ibid.  272.  ''  Per  Koiine,  J.,  Cliiipiniin  v.  Turner, 

''  Conway   v.   Alexander,  7   Crancli,     1  Call, '250. 

237.  ^  1  Ircd.  Eq.  226. 


CH.  v.]  COia)ITIONAL   SALE.  89 

because  of  undue  advantage  taken  of  the  necessities  of  the 
debtor.  In  examining  transactions  between  borrowers  and 
lenders,  and  between  necessitous  men  and  their  creditors, 
courts  of  equity,  aware  of  the  unequal  relation  of  the  par- 
ties, and  of  the  facility  by  which  the  former  may  be  surprised 
into  improvident  arrangements,  and  of  the  moral  coercion 
which  the  latter  can  exercise  over  their  apparent  freedom  of 
action,  are  particularly  attentive  to  any  circumstances  tend- 
ing to  show  an  inconsistency  between  the  form  of  an  act, 
and  the  intent  of  the  parties,  and  wiU  take  great  pains,  when 
their  suspicion  is  thus  excited,  to  get  at  the  substance  of 
what  was  done  or  intended  to  be  done  by  them.  But,  un- 
questionably, it  is  a  conclusion  of  reason,  and  therefore  must 
be  the  presumption  of  every  Court,  that  solemn  instruments 
between  parties  able  to  contract,  declare  the  truth  in  regard 
to  the  subject-matter  of  their  contract,  until  error,  mistake, 
or  imposition  be  shown."  Upon  these  grounds  it  was  held, 
in  the  above  case,^  that  where  the  instrument  was  an  abso- 
lute bill  of  sale,  (of  a  slave)  and  the  sum  paid  not  greatly 
disproportionate  to  the  value,  and  it  did  not  appear  that  the 
agreement,  for  restoring  the  slave  to  the  seller  upon  repay- 
ment of  the  price,  was  made  before  or  at  the  time  of  the 
execution  of  the  bill  of  sale,  and  the  purchaser  had  refused 
to  take  a  mortgage,  and  seven  years  had  elapsed  without 
any  claim  by  the  seller;  the  transaction  should  not  be  treated 
as  a  mortgage,  nor  the  seller  allowed  to  redeem. 

11.  The  doctrine  of  a  conditional  purchase  has  been  par- 
ticularly applied  to  conveyances  by  way  of  rent-charge ;  in 
regard  to  which  it  is  suggested,  that  if  the  estate  of  the  grantee 
did  not  become  absolute  on  breach  of  condition,  the  property 
would  be  very  precarious  ;  for  if,  after  the  term  agreed  upon, 
the  estate  were  redeemable,  it  would  be  only  a  personal 
estate  ;  but  if  considered  as  absolute,  it  would  be  a  freehold, 
and  must  be  conveyed  as  such,  which  would  create  great 
confusion.^     In  this  class  of  cases,  moreover,  the  absence  of 

1 1  Ired.  Eq.  221.  2  i  Pow.  13O. 

8* 


90  THE   LAW   OF  MORTGAGES.  [CH.  V. 

any  covenant  to  pay  the  debt  is  relied  upon,  as  a  ground  for 
restricting  the  right  of  redemption  to  the  time  limited  in  the 
deed.  In  some  of  them,  also,  the  lapse  of  time  has  been  an 
additional  reason  for  refusing  relief.  Thus,  in  Floyer  v.  Lav- 
ington,!  a  rent-charge  was  granted,  upon  condition  that  the 
grant  should  be  void  upon  the  grantor's  making  certain  pay- 
ments during  his  life.  There  was  no  covenant  to  pay  ;  the 
rent-charge  was  much  less  than  the  interest  of  the  money,  and 
the  grantee  had  conveyed  the  rent-charge,  after  the  grantor's 
death,  given  a  collateral  security  to  the  purchaser  for  quiet 
enjoyment,  and  the  purchaser  had  afterwards  made  a  marriage 
settlement  of  it.  Held,  after  sixty  years  the  right  of  redemp- 
tion was  gone. 

12.  Thomas  Mellor  mortgaged  to  the  Whiteheads,  and  the 
latter  to  Cartwright  for  X200,  Thomas  and  his  son  joining  in 
the  latter  mortgage.  To  secure  the  interest,  Cartwright 
leased  to  the  son  for  five  thousand  years,  at  the  rent  of  ,£12 
per  annum  for  the  first  three  years,  and  .£10  the  remainder 
of  the  term  ;  and  if  the  £200  and  interest  were  not  paid  in 
three  years,  the  land  to  be  reconveyed.  Receipts  were  given, 
sometimes  as  for  interest,  and  sometimes  for  a  rent-charge. 
The  last  receipt  was  about  forty  years  subsequent  to  the 
lease.  Ten  years  after  this  receipt,  a  bill  to  redeem  was 
brought  by  the  grandson  of  Thomas,  the  estate  having  nearly 
doubled  in  value  since  the  mortgage.  Held,  it  could  not  be 
sustained.^ 

13.  But  in  Verner  v.  Winstanley,^  one  of  the  plaintiffs, 
having  become  embarrassed,  applied  to  the  defendant  for  a 
loan  of  X300,  for  which  he  should  take  an  assignment  of  a 
rent-charge  of  <£50  per  annum.  The  assignment  was  accord- 
ingly made,  with  a  covenant,  that  the  plaintiff  might  at  any 
time  repurchase  and  reassume  the  rent-charge,  on  giving 
three  months'  notice,  and  paying  £350  and  all  arrears.  The 
plaintiffs  also  gave  their  joint  and  several  bond  to  the  de- 
fendant in  the  sum  of  £700,  conditioned  to  pay  <£3d0  in 

1  1  r.  Wins.  268.  2  Mellor  v.  Lccs,  2  Atk.  494.  ^  o  Scli.  &  Lcf.  393. 


CH.  v.]  CONDITIONAL   SALE.  91 

about  eight  months,  and  also  for  the  regular  and  punctual 
payment  of  the  rent-charge.  Held,  the  assignment  was  a 
mortgage  ;  partly  upon  the  ground  of  the  clause  for  redemp- 
tion, and  the  additional  sum  of  £50  to  be  paid  by  the  plain- 
tiff; but  chiefly  because  the  defendant  did  not  take  on  him- 
self the  whole  risk  of  the  annuity,  but  received  the  security  of 
the  bond. 

14.  In  the  case  of  Davis  v.  Thomas,^  the  plaintiff  mortgaged 
certain  property  to  Twyning  for  X  1,200,  and  afterwards  bor- 
rowed £200  more  on  the  same  security.  In  the  same  year, 
the  plaintiff  executed  a  deed  of  release,  for  a  valuable  consid- 
eration, of  the  equity  of  redemption,  to  the  defendant,  the 
mortgagee.  Soon  afterwards,  the  defendant  demised  the 
premises  to  the  plaintiff  for  ninety-nine  years,  at  a  rent  of  a 
hundred  guineas  a  year  ;  and  upon  the  lease  was  indorsed  an 
agreement,  signed  by  the  morgtagee,that  if  the  plaintiff  regu- 
larly paid  the  rent  due  at  Lady-day  by  the  4th  of  June,  and 
the  rent  due  at  Michaelmas  by  the  26th  of  October,  he  might 
repurchase  the  premises  for  .£1,850  at  any  time  within  five 
years  ;  but  if  default  were  made  in  payment  of  the  rent  within 
those  periods,  the  agreement  to  be  void.  The  plaintiff  failed 
in  such  payment,  and  distresses  were  made  for  the  rent ;  but 
within  the  five  years  he  applied  to  repurchase,  and  tendered 
the  arrears  of  rent.  The  defendant  refused  to  resell ;  and  the 
plaintiff  files  a  bill  to  have  the  benefit  of  the  agreement  or  be 
let  in  to  redeem.  The  biU  imputed  fraud  to  the  defendant, 
and  represented  the  estate  as  having  been  in  1820,  the  date 
of  the  release,  worth  about  £3,000,  but  those  allegations  were 
not  proved.  Lord  Chancellor  Brougham  decided,  that  the 
instruments  above  referred  to  did  not  all  constitute  one  trans- 
action, the  party  having  first  mortgaged  his  estate,  two  years 
afterwards  conveyed  it,  and  three  months  subsequently,  upon 
obtaining  a  lease  from  the  purchaser,  procured  to  be  indorsed 
upon  the  lease,  by  way  of  indulgence,  a  power  to  repurchase 
on  certain  terms  ;  that  as  the  party  acted  understandingly  and 

1  1  Russ.  &,  My.  506. 


92  THE   LAW   OF   MORTGAGES.  [CH.  V. 

used  the  most  stringent  words  to  make  time  of  the  essence 
of  the  contract,  he  did  not  come  in  due  time  or  entitle  him- 
self by  his  conduct  to  the  benefit  claimed  by  him. 

15.  In  the  case  of  Holmes  v.  Grant,^  a  debtor  conveyed  his 
farm  to  his  creditor  for  the  amount  of  the  debt,  which  was 
about  the  value  of  the  farm,  by  a  warranty  deed,  and  the 
grantee  surrendered  and  discharged  his  securities  for  the  debt, 
and  the  same  day  gave  the  grantor  a  written  agreement,  that 
if  the  grantor  could  find  a  purchaser  for  the  farm  within  one 
year,  he  might  have  all  he  could  obtain  beyond  the  debt,  with 
interest.  It  was  held,  that  this  transaction  was  not  neces- 
sarily a  mortgage,  even  though  the  agreement  were  given 
simultaneously  with  the  deed,  and  in  virtue  of  a  previous 
bargain  therefor. 

16.  In  the  case  of  Perry  v.  Meddowcroft,-  the  purchase- 
money  of  an  estate  was  paid  by  a  third  person  on  behalf  of 
the  purchaser,  and  a  further  sum  advanced,  with  an  agree- 
ment that  the  deed  should  be  made  to  the  third  person,  and 
if  the  purchaser  repaid  the  money  with  interest  by  a  certain 
day,  the  agreement  to  be  void  ;  otherwise  the  sale  was  thereby 
absolutely  confirmed  to  the  other  party.  Held,  a  conditional 
purchase. 

17.  In  the  case  of  Williams  v.  Owen,^  an  estate  was  con- 
veyed  absolutely  in  consideration  of  .£550,  (the  value  of  the 
property,)  and  an  agreement  given  back,  that  if  the  grantor 
repaid  this  sum  and  the  cost  of  the  conveyance  within  a  year, 
the  grantee  would  reconvey,  having  his  option  either  to  retain 
the  intermediate  rents  or  to  receive  interest.  Held,  a  condi- 
tional sale. 

18.  In  Goodman  v.  Grierson,^  it  was  held  by  Lord  Man- 
ners, that  where  the  trustees  of  a  settlement  of  .£1,000  portion, 
charged  on  estates,  accepted  part  of  the  estate  "  in  lieu  and 
satisfaction  "  of  the  X  1,000,  with  power  for  the  owner  of  the 
estate  to  reassume  the  premises  at  any  time  within  ten  years, 

1  8  Taigc,  243.  •'  10  Sim.  .380  ;  .'J  M.  &  Cr.  30G. 

2  4  Bcav.  l'J7.  *  2  Ball  &  B.  274. 


CH.  v.]  CONDITIONAL   SALE.  93 

on  payment  of  that  sura,  the  transaction  was  a  conditional 
sale,  because  the  trustees  had  no  remedy  for  the  deficiency, 
if  the  estate  proved  insufficient. 

19.  After  two  successive  mortgages  to  different  persons,  the 
mortgagor  conveyed  in  fee  to  the  first  mortgagee.  The  deed 
recited,  that  the  debt  of  the  grantee  was  due,  and  that  the 
mortgagor  had  agreed  to  convey  to  him  absolutely,  subject  to 
the  payment  by  the  grantee  of  the  second  mortgagee's  debt. 
This  debt  was  accordingly  paid.  The  grantor  took  back  an 
agreement  from  the  grantee,  that  upon  the  grantor  or  his 
heirs  paying  the  grantee  or  his  heirs,  at  the  end  of  two  years, 
the  sum  named  in  the  deed,  the  grantee  or  his  heirs  would 
convey  to  the  gi'antor.  It  was  further  expressed,  that  the 
grantor  should  pay  the  grantee  one  hundred  and  twenty-five 
dollars  per  year.  Two  months  afterwards,  the  grantor  exe- 
cuted the  following  release  :  "  AH  my  right  and  claim  in,  &c., 
that  I  have  deeded  to,  &c.,  and  I  give  him  possession,"  which 
was  taken  by  the  grantee.  The  right  of  redemption  was 
worth  from  fifteen  hundred  to  two  thousand  dollars,  and  the 
purchase  made  for  sixteen  hundred  dollars.  No  compulsory 
measures  were  taken  or  threatened  by  the  grantee  against  the 
grantor.  No  covenant  or  obligation  remained  on  the  part  of 
the  grantor.     Held,  a  conditional  sale.l 

20.  Where  the  owner  of  land  conveyed  it,  in  order  that  the 
grantee  might  be  able  to  sell  it,  account  with  the  grantor  for 
a  certain  sum,  and  retain  the  balance  for  his  services ;  and 
afterwards  the  grantee  reconveyed,  provided  that  if  he  paid 
the  grantor  the  sum  above  mentioned,  the  deed  should  be 
void ;  the  transaction  was  held  not  a  mortgage,  but  a  condi- 
tional sale.  In  this  case,  the  Court  remark  :  —  "  Turner  was 
the  mere  agent  of  Porter  to  sell  the  land,  and  was  to  have  for 
his  trouble  what  he  could  obtain  above  two  thousand  dollars. 
There  was  no  debt  due  from  Turner  to  Porter  for  which  the 
land  was  put  in  pledge.  Turner  had  undertaken  to  do  no 
act  for  the  performance  of  which  the  land  was  mortgaged. 

1  Hicks  V.  Hicks,  5  Gill  &  J.  75. 


94  THE   LAW  OF   MORTGAGES.  [CH.  V. 

Turner  was  to  be  the  purchaser  in  case  he  could  sell,  and  in 
that  case  alone."  ^ 

21.  In  the  case  of  Robinson  v.  Cropsey,^  a  transaction  was 
held  to  be  a  conditional  sale  and  not  a  mortgage,  although 
there  was  an  express  agreement  that  the  vendor  might  redeem 
by  paying  a  certain  sum  in  one  year,  and  the  costs  of  inter- 
mediate improvements,  if  any,  upon  the  buildings ;  but  if 
there  should  be  no  sale,  that  he  should  not  have  the  use  of 
the  farm :  upon  the  ground,  that  it  was  evident  from  the 
whole  transaction,  that  the  parties  intended  an  entire  discharge 
of  the  debt,  which  fully  equalled  the  value  of  the  land  at  that 
time. 

22.  Land  was  conveyed  by  an  absolute  deed,  and  on  the 
same  day  a  covenant  executed  by  the  grantee,  reciting  that 
the  deed  was  given  for  the  purpose  of  paying  a  specified  sum, 
and  agreeing  not  to  transfer  the  land  within  one  year  without 
the  grantor's  consent,  and  if  the  latter  should  within  that  time 
find  a  purchaser,  he  would  convey  to  him,  on  receiving  the 
sum,  with  interest,  for  which  the  land  had  been  conveyed  to 
him  ;  and  if  such  sale  should  not  be  made  within  the  year,  it 
should  be  left  to  certain  persons  to  determine  what  further 
sum  he  should  pay  the  grantor  for  the  land,  which  sum  he 
covenanted  to  pay.  The  grantee  brings  ejectment  against 
the  grantor  for  the  land.  Held,  the  conveyance  was  not  a 
mortgage,  and  the  action  could  be  maintained.^ 

23.  In  Baxter  v.  Willey,*  it  appeared  that  the  defendant 
executed  to  the  plaintiff  the  promissory  note  upon  which  the 
action  was  founded,  with  two  others,  and  conveyed  to  him 
certain  land  in  Canada,  but  did  not  take  up  the  notes  ;  that 
the  plaintiff  then  gave  back  to  the  defendant  a  writing,  stat- 
ing that  the  deed  was  made  in  payment  of  these  notes,  but 
agreeing  to  reconvey,  if  at  the  end  of  two  years  the  defendant 
would  pay  the  amount  of  the  notes  with  interest.  This 
writing  was  transferred  to  others  for  a  valuable  consideration, 


1  Porter  V.  Nelson,  4  N.  II.  130.  '-^  Baker  v.  Thnislier,  4  Dcnio,  493. 

2  2  Eihv.  Cii.  138.  *  9  Verm.  276. 


CH.  v.]  CONDITIONAL   SALE.  95 

and  had  since  been  lost.  The  defendant  was  to  retain  pos- 
session during  the  two  years.  Evidence  was  offered,  that  the 
plaintiff  had  acknowledged  the  notes  were  paid.  Held,  the 
action  could  not  be  maintained,  because  by  the  laws  of 
Canada,  the  defendant  would  have  no  equity  of  redemption 
in  the  land. 

23  a.  In  case  of  an  absolute  deed,  and  a  writing  back,  giv- 
ing the  right  to  repurchase  within  three  years,  the  lapse  of 
more  than  half  the  period  of  the  statute  of  limitations  without 
any  attempt  to  redeem,  will  have  an  important  bearing  upon 
the  question  of  the  right  to  redeem.^ 

23  h.  More  especially  will  redemption  be  denied  in  such 
case,  where  the  securities  are  given  up,  a  full  price  paid,  and 
the  grantee  hjis  apparently  in  good  faith  sold  the  land.^ 

24.  A  written  agi'eement  to  reconvey,  upon  repayment  of 
the  consideration  named  in  the  deed,  unsealed,  and  therefore 
insufficient  to  constitute  a  legal  mortgage,  makes  an  equita- 
ble mortgage,  and  not  a  sale  with  the  right  to  repurchase.-^ 

25.  The  following  distinction  has  been  made  between 
mortgages  and  conditional  sales,  in  reference  to  the  evidence, 
by  which  they  may  be  respectively  proved.  "  A  formal  con- 
veyance may  certainly  be  shown  to  be  a  mortgage  by  extrin- 
sic proof,  while  a  formal  mortgage  may  not  be  shown  to  be 
a  conditional  sale  by  the  same  means.  In  the  one  case,  the 
proof  raises  an  equity  consistent  with  the  wTiting,  and  in  the 
other  would  contradict  it."  * 

26.  It  has  been  sometimes  contended,  that  even  where  a 
transaction  is  construed  to  be  not  a  mortgage,  but  a  condi- 
tional sale,  equity  will  still  afford  relief  against  the  strict 
enforcement  of  the  contract  between  the  parties.  Upon  this- 
subject,  the  following  remarks  have  been  made  :  — 

27.  "  It  is  contended  for  the  defendants,  that  even  should 
this  be  considered  a  conditional  sale,  and  not  a  mortgage  or 
security  for  a  subsisting  debt,  yet  a  court  of  equity  may 

1  Mellish  V.  Kobertson,  23  Venn.  003.         *  Per  Gihson,  C.  J. ;  Kunkle  r.  Wolf- 
'■^  Ihitl.  ersbcrger,  6  Watts,  130. 

^  Eatou  V.  Green,  22  Piek.  526. 


96  THE   LAW   OF   MORTGAGES.  [CH.  V. 

relieve  against  a  forfeiture  for  a  breach  in  failing  to  repay  the 
money  in  time,  because  compensation  can  be  made,  and 
under  the  circumstances  relief  ought  to  be  granted.  It  is  a 
familiar  head  of  equity  jurisdiction  to  relieve  against  a  for- 
feiture or  penalty  upon  the  principle  of  making  compensation. 
But  the  present  is  not  a  case  of  forfeiture.  The  owner  of  the 
jjroperty  sold  his  estate ;  and  there  is  no  proof  of  the  price 
having  been  inadequate.  He  made  it  a  part  of  his  contract 
—  and  I  must  presume  the  price  was  fixed  with  reference  to 
the  event  —  of  having  the  privilege  of  redeeming,  or,  which 
is  the  same  thing,  repurchasing,  within  one  year,  by  paying  a 
certain  amount  of  money.  Time  consequently  was  of  the 
essence  of  the  contract ;  and  performance  necessary  to  regain 
the  estate  with  which,  by  his  voluntary  contract,  he  had 
parted ;  not  that  non-performance  works  a  forfeiture  and 
divests  a  title  and  estate  already  in  him.  In  such  cases, 
equity  does  not  interfere ;  because  it  would  be  varying  the 
express  terms  of  the  contract,  and  giving  to  the  party  a  bene- 
fit of  extension  in  point  of  time,  for  which  he  has  not  stipu- 
lated. No  fraud,  accident,  or  mistake  is  charged  as  a  cause 
of  his  not  having  availed  himself  of  the  privilege  within  the 
time  appointed."  ^  (e) 

1  Per  McCoun,  V.  Clianc,  Robinson  v.  Cropsey,  2  Edw.  147. 


(fi)  The  following  form  of  decree  was  passed  by  the  Court  in  Pennsyl- 
vania:—  "If  the  said  John  Mortimore  refunds  to  said  Rankin  the  considera- 
tion-money aforesaid,  with  lawful  interest  thereon,  in  one  year  from  this 
date,  then  this  deed  to  be  void  and  of  no  effect,  and  this  not  to  be  considered 
in  the  nature  of  a  mortgage,  but  an  express  stipulation  to  pay  on  the  partic- 
ular day,  and  if  not  then  paid,  the  estate  and  title  shall  be  absolute,  without 
any  further  deed,  transfer,  or  proceeding  whatever."  Rankin  v.  Mortimerc, 
7  Watts,  372.  In  a  bill  to  redeem,  where  the  deed  is  a  conditional  sale,  if 
the  bill  allege  that  it  was  given  as  security,  it  will  on  demurrer  be  considered 
a  mortgage.     Blakemorc  v.  Byrnside,  2  Eng.  505. 


en.  VI.]  PERSONAL   LIABILITY,   ETC.  97 


CHAPTER  VI. 


PERSONAL    LIABILITY    OF   THE   MORTGAGOR,    ETC. 


1.  Personal  liability  of  the  mortgagor; 
•W'liethcr  necessary  to  constitute  a  mort- 
gage ;  wlietlicr  the  deed  itself  creates 
such  liability,  &c. 

30.  Mortgages  for  support  and  main- 
tenance, &c. 


48.  Covnnant  or  condition  for  payment 
of  the  del)t,  how  construed.  Covenants 
for  title  in  a  mortgage.  Mutual  relation 
and  effect  of  the  covenants  in  tlie  deed 
and  the  mortgage.  Estoppel,  Rebutter, 
&c. 


1.  In  England,  it  Avould  seem  that  a  mortgage  often,  if 
not  usually,  contains,  in  addition  to  the  conditional  clause,  a 
covenant  to  pay  the  sum  which  the  conveyance  is  designed 
to  secure  to  the  grantee.  In  the  United  States,  such  cove- 
nant is,  for  the  most  part,  omitted  in  the  deed  itself;  but  the 
proviso  of  the  deed  refers  to  a  bond,  note,  or  other  personal 
security,  made  at  the  same  time,  upon  the  payment  of 
which,  both  the  mortgage  and  the  personal  security  are  to 
become  void.  Of  course,  either  a  covenant  in  the  deed,  or  a 
separate  obligation  accompanying  it,  makes  the  mortgagor 
personally  liable  for  the  debt,  at  the  election  of  the  mortga- 
gee ;  and  it  will  be  seen  hereafter,  (see  ch.  31,)  that  the  lat- 
ter may  pursue  his  remedies  upon  the  personal  security  and 
the  mortgage,  at  the  same  time,  though  he  can  eventually 
have  but  one  salisfaction  of  his  claim.  In  the  absence  of 
any  covenant  in  the  deed,  or  personal  obligation  accompany- 
ing it,  two  questions  have  been  raised  and  much  discussed ; 
one  relating  to  the  nature,  designation,  and  legal  operation 
upon  the  property,  of  the  conveyance  ;  that,  is,  whether  it 
shall  constitute  a  mortg-ag-e  or  a  conditional  sale  ;  (see  ch.  5,) 
the  other,  whether  such  a  conveyance  will,  of  itself,  give  to 
the  grantee  a  personal  claim  and  remedy  against  the 
grantor,  for  the  sUm  of  money  therein  referred  to.  In  con- 
nection with  the  same  subject,  has  also,  at  times,  arisen  the 

VOL.    I.  9 


98  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

question,  whether,  in  order  to  constitute  a  mortgage,  strictly 
so  called,  the  condition  must  be  for  the  payment  of  money  ; 
and,  where  it  is  for  the  performance  of  other  acts,  in  what 
precise  mode  and  extent  it  is  to  be  enforced  by  legal  pro- 
ceedings. From  the  nature  of  the  case,  these  questions  have 
all  necessarily  been  somewhat  blended  together,  in  the  re- 
marks of  judges  and  elementary  writers,  and,  therefore,  do 
not  here  require  separate  consideration. 

2.  Mr.  Coote  remarks,^  that  there  is  the  same  right  of  re- 
demption, whether  there  be  a  covenant  or  not.  Every  loan 
implies  a  debt ;  though  the  covenant  may  serve  to  explain 
the  transaction  in  a  doubtful  case,  and  prove  it  to  be  a  mort- 
gage. 

3.  The  same  author  remarks  :  ^  —  "  A  mortgage  cannot  be 
a  mortgage  on  one  side  only  ;  it  must  be  mutual ;  that  is,  if 
it  be  a  mortgage  with  one  party,  it  must  be  a  mortgage  with 
both.  The  reverse  of  this  was  formerly  attempted  to  be  es- 
tablished ;  namely,  that  it  must  be  a  mortgage  with  both  or 
with  neither ;  so  that  it  was  argued  none  could  come  to  re- 
deem, if  the  mortgagee  could  not  compel  the  payment  of 
the  mortgage-money ;  but  the  former  is  the  true  principle. 
The  mutuality,  however,  need  not  run  quatuor  pedibus ;  the 
rule  only  requires  that  it  shall  not  be  competent  to  one  party 
alone  to  consider  it  a  mortgage.  In  other  respects  the  rights 
of  the  parties  may  be  different,  for  it  is  every  day's  practice, 
that  one  party  may  not  be  able  to  foreclose  at  a  time  when 
the  other  may  redeem." 

4.  In  Ancaster  v.  Mayer,'^  Lord  Chflncellor  Thurlow 
says :  —  "A  man  mortgages  his  estate  without  covenant, 
yet,  because  the  money  was  borrowed,  the  mortgagee  be- 
comes a  simple  contract  creditor,  and,  in  that  case,  the  mort- 
gage is  a  collateral  security."  The  same  doctrine  is  laid 
down  by  him  in  the  case  of  Floyer  v.  Lavington.* 

1  Cooti",  50.  -  Jl.id.  01.  M  r.  Wins.  208;  ace.  Yates  v.  A«h- 

■^  I  IJio.  404.     Sec  Bacon  v.  JJrowii,     ton,  4  (^11.  B.  182  ;  AUenhy  v.  Dalton, 

19  Conn.   29;  Lawrancc    v.   Boston,  8     5  L.  J.  K.  B.  .'312,  (0.  S.) 

lMl^^  La\v&  Kq.  494;  llansonc  t;.  I'ray- 

Bcr,  10  Lei;^!),  592. 


CH.  VI.]  PERSONAL   LIABILITY,    ETC.  99 

5.  In  King  v.  King,i  Lord  Talbot  said,  the  absence  of  a 
covenant  or  bond  did  not  vary  the  transaction  ;  for  that 
every  mortgage  impHed  a  loan,  and  every  loan  implied  a 
debt,  for  which  the  mortgagor's  personal  estate  was  liable  ; 
and  although  an  action  of  covenant  would  not  lie,  still,  it 
might  be  a  mortgage. 

6.  In  Mellor  v.  Lees,^  Lord  Hardwicke  says,  the  absence 
of  a  covenant  is  a  strong  circumstance  to  indicate  the  in- 
tention of  the  parties  ;  but  if  that  were  the  only  circum- 
stance, I  should  not  rely  upon  it  to  defeat  the  plaintiff's 
right  to  redeem. 

7.  It  has  been  held,  that  an  acknowledgment  by  the  mort- 
gagor, in  a  separate  deed,  that  the  debt  is  due,  if  made  solely 
for  a  collateral  purpose,  will  not  raise  an  implied  covenant  to 
pay ;  though,  in  general,  this  is  the  effect  of  an  unequivocal 
acknowledgment.^ 

8.  In  the  case  of  Exton  v.  Greaves,^  certain  mortgaged 
premises,  or  the  equity  of  redemption  thereof,  being  sub- 
jected to  the  payment  of  divers  debts,  the  mortgagee  brings 
a  bill  for  foreclosure  against  the  mortgagor  and  all  the  cred- 
itors. At  the  time  fixed  for  foreclosure,  the  defendant,  a 
creditor,  by  consent  of  the  creditors,  paid  the  money,  and 
agreed  with  the  creditors,  that  if  they  would  pay  his  money 
at  a  further  day,  they  should  redeem  ;  otherwise,  he  should 
have  the  lands  absolutely.  They  failed  to  do  so,  the  defend- 
ant enjoyed  the  lands  for  twenty  years,  and  laid  out  £800  in 
building  ;  and  now  the  creditors  exhibit  their  bill  to  redeem 
him.  It  was  contended  for  the  defendant,  that  the  case  was 
not  like  a  mortgage,  for  a  mortgagee  has  a  covenant  for  pay- 
ment of  his  money,  and  most  commonly,  a  bond ;  but  here, 
the  defendant  had  no  way  to  compel  the  creditors  to  pay 
him  his  money ;  that  a  mortgage  ought  to  be  mutual ;  as 
one  may  compel  to  receive,  so  the  other  may  compel  to  pay ; 
and  it  would  have  been  looked  on  as  superfluous  and  fan- 


1  3  r.  Wms.  358.  3  Coiirtnev  v.  Taylor.  6  M.  &  G.  851. 

-2  Atk.  494.  4  1  Vein.  "138. 


100  THE   LAW   OP  MORTGAGES.  [CH.  VI. 

tastical,  for  the  defendant  to  have  exhibited  a  bill  to  have 
%reclosed  these  creditors.  But  the  Lord  Keeper  decreed  a 
redemption,  and  directed  an  account  to  be  taken,  and  the 
defendant  to  be  allowed  only  necessary  repairs  and  lasting 
improvements. 

9.  In  the  case  of  Goodman  v.  Grierson,^  the  father  of  the 
plaintiff,  owning  lands  subject  to  a  charge  of  X1,000  to  his 
sister,  the  wife  of  Higgins,  in  1788  conveyed  to  trustees  for 
Higgins  and  wife,  in  lieu  and  satisfaction  of  the  sum  of 
.£1,000;  with  a  covenant  for  reconveyance,  if  the  grantor, 
his  heirs,  &c.,  should,  within  ten  years,  pay  the  .£1,000. 
Higgins  entered.  In  1797,  the  father  of  the  plaintiff  died, 
leaving  the  plaintiff  his  heir.  Soon  after,  Higgins  and  wife 
died,  and  the  defendant  became  entitled  to  the  lands  under 
the  will  of  Higgins.  In  1803,  a  tender  was  made  to  him  of 
.£1,000  on  behalf  of  the  plaintiff,  which  he  refused;  and  in 
April,  1811,  the  bill  was  filed  on  behalf  of  the  plaintiff,  a  mi- 
nor, for  redemption.  It  was  held  that  the  bill  should  be 
dismissed.  Lord  Chancellor  Manners  remarked  :  ^  —  "  If  the 
intention  were  that  it  should  be  a  mortgage,  the  absence  of 
a  f  ovenant  and  collateral  bond  would  not  make  it  the  less 
so.  The  fair  criterion  by  which  the  Court  is  to  decide 
whether  this  deed  be  a  mortgage  or  not,  I  apprehend  to  be 
this  —  are  the  remedies  mutual  and  reciprocal?  Has  the 
defendant  all  the  remedies  a  mortgagee  is  entitled  to  ?  I 
conceive  he  has  not.  Suppose,  for  instance,  the  defendants 
to  file  a  bill  of  foreclosure  ;  by  the  practice  of  this  Court,  the 
decree  is  for  a  sale  of  the  mortgaged  premises,  if  they  be  not 
redeemed  within  the  time  limited  by  the  course  of  the  Court. 
Suppose  the  sale  to  take  place,  and  the  produce  to  be  in- 
Kiifli(aent  to  discharge  the  X  1,000  and  costs,  how  is  the  de- 
ficiency to  be  raised?  What  remedy  could  the  defendant 
then  have  ?  If  it  were  a  mortgage,  he,  in  that  case,  might 
proceed  on  his  covenant  or  bond,  or  if  no  covenant  or  bond, 
upon  the  implied  assumpsit;  but  how  could  any  action  be 

1  2  liidl  &  B.  274.  -  Ibid.  278. 


CH.  VI.]  PERSONAL   LIABILITY,    ETC.  101 

maintained  in  this  case,  where  the  defendants  have  taken 
the  conveyance,  not  as  security,  but  expressly  in  lien  and 
satisfaction  of  the  portion  of  £1,000.  This  appears  to  me 
decisive  to  show,  that  the  transaction  between  these  parties 
was  not  that  of  a  mortgage,  but  a  conditional  sale  ;  for  if 
the  defendants  have  not  all  the  remedies  of  a  mortgagee, 
why  am  I,  contrary  to  the  express  provisions  of  this  deed,  to 
hold  it  to  be  a  mortgage,  and  to  extend  the  condition  be- 
yond the  limit  agreed  upon  by  the  parties  to  this  deed  ? 
There  would  be  much  hardship  and  inconvenience  to  the 
one  party,  and  there  appears  to  me  to  be  no  substantial 
ground  to  entitle  the  other  to  relief." 

10.  The  doctrine  upon  this  subject,  in  the  United  States, 
has  been  somewhat  various  and  conflicting. 

11.  In  Conway  v.  Alexander,^  the  absence  of  a  covenant 
was  held  to  be  strong  but  not  conclusive  evidence  of  a  con- 
ditional sale. 

12.  In  the  case  of  Morris  v.  Nixon,^  it  was  held,  that 
where  there  was  a  previous  conversation  between  the  par- 
ties about  borrowing  and  lending,  an  offer  to  secure  by  mort- 
gage, and  a  bond  given  to  the  grantee ;  these  circumstances 
were  sufficient  to  make  the  deed  a  mortgage,  though  in  form 
absolute,  unless  a  subsequent  bargain  were  proved. 

13.  In  the  case  of  Flagg  v.  Mann,^  Judge  Story  remarked, 
as  follows  :  —  "It  is  said,  that  there  is  no  covenant  on  the 
part  of  Richardson  to  repay  the  money  paid,  which  should  be 
paid  by  Walker  and  Fisher,  to  discharge  the  incumbrances 
on  the  premises.  But  that  is  by  no  means  necessary  in 
order  to  constitute  a  mortgage,  or  to  make  the  grantor  liable 
for  the  money.  The  absence  of  such  a  covenant  may,  in 
some  cases,  where  the  transaction  assumes  the  form  of  a 
conditional  sale,  be  important,  to  ascertain  whether  the 
transaction  be  a  mortgage  or  not ;  but,  of  itself,  it  is  not 
decisive.  The  true  question  is,  whether  there  is  still  a  debt 
subsisting  between  the  parties,  capable  of  being  enforced  in 

1  7  Cranch,  237.  -  1  How.  119.  =^2  Sumn.  534. 


102  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

any  way,  in  rem  or  in  persona??!.  Now,  it  seems  to  me  clear, 
upon  admitted  principles  of  law,  that,  upon  the  payment  of 
the  money  due  to  Bennett  by  Walker  and  Fisher,  Richard- 
son became  their  debtor  for  that  amount,  as  it  was  paid  at 
his  request,  and  for  his  benefit.  It  is  a  common  principle, 
that  if  A.,  at  the  request  of  B.,  pays  a  debt  due  by  him  to  C, 
A.  may  recover  the  amount  in  assumpsit  for  money  paid  to 
his  use,  or  for  money  lent  and  accommodated.  In  my  judg- 
ment, that  is  the  very  case  at  bar."  "  It  is  said,  that  here 
there  was  no  loan  made  or  intended  to  be  made,  by  Walker 
and  Fisher  to  Richardson  ;  and  that  they  refused  to  make 
any  loan.  There  is  no  magic  in  words.  It  is  true,  that 
they  refused  to  make  a  loan  to  him  in  money.  But  they 
did  not  refuse  to  pay  for  him  the  amount  due  to  Bennett, 
and  to  take  the  premises  as  their  seciurity  for  reimbursement 
within  five  years." 

14.  It  has  been  held  in  Pennsylvania,  that  a  conditional 
conveyance,  without  any  covenant,  may  constitute  a  mort- 
gage, upon  which  the  sum  due  may  be  recovered  by  scire 
facias,  or  the  premises  by  ejectment.^ 

15.  But  in  the  case  of  Scott  v.  Fields,^  where  the  plain- 
tiff brought  an  action  of  debt  upon  a  mortgage  in  common 
form,  and  was  allowed  to  prove  by  parol  evidence,  that  no 
such  bond  was  actually  given  as  the  mortgage  recited  ;  it 
was  held,  that  the  action  could  not  be  maintained.  In  giv- 
ing the  opinion  of  the  Court,  reversing  the  judgment  of  the 
Court  below,  Sergeant,  J.,  remarks :  —  "A  mortgage,  in  its 
origin,  was  a  conveyance  of  land,  with  a  condition  annexed, 
that,  on  payment  of  a  sum  of  money  by  the  grantor  to  the 
grantee,  at  a  certain  day,  the  conveyance  should  be  void. 
In  case  of  the  non-payment,  the  remedy  of  the  grantor 
(grantee)  was  by  a  proceeding  in  rem.  It  was  never  con- 
sidered as  binding  on  the  mortgagor  personally  for  the  pay- 
ment of  the  money.     The  authorities  and  the  reason  of  the 

1  Wharf  y.  IIowcll,  5  IJinn.  499.    Sec  2  7  Watts,  360. 

Stocvcr   V.    StoevcT,    9    S.    &  ]{.  448; 
Hicks  V.  Hicks,  5  Gill  &  J.  85. 


CH.  YI.]  PERSONAL   LIABILITY,    ETC.  103 

thing  seem  to  show,  that  a  mortgage  is  not,  of  itself,  an  in- 
strument by  which  a  personal  liability  for  the  money  is 
raised,  and  on  which  an  action  of  debt  or  covenant  can  be 
maintained ;  —  yet,  that  if  there  be  any  prior  or  accompany- 
ing cause  of  action  which,  of  itself,  creates  a  personal  lia- 
bility distinct  from  the  mortgage,  such  as  a  loan,  a  bond,  a 
note,  or  other  claim,  the  mortgage  is  not  to  be  considered  as 
merging  such  claim  or  demand,  but  is  merely  a  collateral 
security.  It  is  contended  in  the  present  case,  that  there  is,  in 
this  mortgage,  an  acknowledgment  of  a  debt,  which  is  a 
sufficient  ground  to  maintain  the  action.  If  there  were  such 
an  acknowledgment  of  a  prior  debt  and  no  more,  as  for  in- 
stance, if  it  recited  money  borrowed,  it  would  rather  seem, 
from  the  authorities,  that  the  action  in  personam  should  be 
on  the  contract  by  which  the  debt  arose,  and  that  no  implied 
contract  inferred  from  the  mortgage  will  be  sufficient.  But 
here  the  acknowledgment  is  of  a  bond,  —  and  the  mortgage 
is  declared  to  be  given  to  secure  the  payment  of  the  bond. 
No  contract  can  be  implied  from  the  mortgage,  when  the 
contract  is  express  and  formal.  '  Expressum  facit  cessare  tac- 
iturn.'' "  It  was  further  remarked,  that  even  if  the  evidence 
showed  that  no  bond  was  actually  given,  but  the  parties 
waived  it ;  this  action  could  be  sustained  only  on  the  lan- 
guage of  the  mortgage. 

16.  It  has  been  held  in  North  Carolina,  that  the  mortga- 
gor has  a  right  to  redeem,  though  the  mortgage  contains  no 
covenant.'  So,  in  New  York  it  has  been  held,  that  the 
mortgagee  may  maintain  a  personal  action  for  the  debt, 
upon  the  acknowledgment  in  the  deed,  of  indebtedness,  and 
that  the  conveyance  is  made  for  security.^  But  not  unless 
there  is  such  an  acknowledgment,  or  an  agreement  to  pay.^ 
Under  the  Revised  Statutes  of  New  York,  no  covenant  to 
pay  the  sum  secured  by  a  mortgage  can  be  implied  from 
the  mortgage  itself;  and  where  a  debt  is  discharged  by  a 
mortgage  or  an  absolute  deed,  as  security  for  repayment  of 

1  Wilcox  V.  MoiTis,  1  Mur.  117.  =*  Weed  v.  Covill,  14  Barb.  242. 

'  Elder  v.  Eouse,  15  Wend.  218. 


104  THE   LAW   OF  MORTGAGES.  [CH.  VI. 

the  consideration,  the  only  remedy  for  payment  is  upon  the 
premises  conveyed.^ 

17.  In  New  Hampshire,  upon  a  construction  of  the  statute 
relating  to  mortgages,  it  was  held,  that  to  constitute  a  mort- 
gage, the  land  must  be  put  in  pledge,  on  condition,  for  the 
payment  of  money  or  some  other  act.  Otherwise,  the  con- 
veyance will  be  construed  as  a  conditional  sale.^ 

18.  In  Maine,  personal  security  is  not  necessary  to  con- 
stitute a  mortgage.^ 

19.  A  mortgage  is  not  a  note,  bond,  bill,  or  other  instru- 
ment in  writing,  within  the  act  of  Illinois,  concerning  prom- 
issory notes,  and  want  or  failure  of  consideration  is  no  plea 
to  a  scire  facias  for  foreclosure.'^     (See  ch.  19.) 

20.  In  Missouri,  one  owing  a  note  for  $300  conveyed 
land  to  the  holder,  at  the  price  of  $1,000.  The  note  not 
being  at  hand  at  the  time,  he  gave  another  note  for  $260, 
for  money  advanced,  and  the  creditor  gave,  at  the  same 
time,  a  note  for  $440.  Held,  this  was  not  sufficient  to  show 
that  the  deed  was  a  mortgage.^ 

21.  In  Massachusetts,  the  rule  has  been  thus  stated :  — 
"  Where  there  is  a  bond  or  covenant  in  the  deed  to  repay 
the  money  lent,  it  is,  at  law,  a  debt ;  and  the  Court  of  Chan- 
cery considers  it  in  good  conscience  due,  although  there  is 
neither  bond  or  covenant  to  enforce  the  repayment."^  And 
in  another  case,  "  the  deed  of  mortgage  creates  a  contract 
respecting  a  debt,  as  well  as  a  conveyance  of  the  estate."  "^ 

22.  So,  a  deed  of  land,  and  a  bond  made  at  the  same  time 
to  reconvey,  on  payment  of  a  sum  of  money,  without  any 
personal  security  therefor,  constitute  a  mortgage  ;  and  the 
mortgagee's  right  under  the  same  will  pass  by  a  devise  of 
"  all  the  obligations  for  money  due  to  him."  Parker,  C.  J., 
says  :  —  "  The  grantee  could  no  otherwise  have  acquired  an 
indefeasible  estate,  than  by  entry  to  foreclose,  or  judgment 

1  Ilonc  V.  Fisher,  2  Rarh.  Cli.  Tj-jO.  ^  Edwards  v.  Fer<ruson,  14  Mis.  4C9. 

■■^  Porter  0.  Nelson,  4  N.  II.  l.'iO.  ^  Kciidiiig  of  Judge    Trowbridge,   8 

"  Smilii  V.  People's,  &e.  11  Slicpl.  185.  Mass.  .5G4. 
*  Hull  f.  Byrne,  1  Scam.  140.  '  Pennimaii  i'.  Iloliis,  13  Mass.  430. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  105 

as  in  cases  of  mortgage ;  and  his  estate  was  liable  to  be 
defeated  at  any  time,  by  the  payment  of  the  debt  and  in- 
terest, after  entry  for  condition  broken,"  &c,^ 

23.  In  Bodwell  v.  Webster,^  Putnam,  J.,  refers  to  the  above 
decision,  and  suggests,  as  his  own  opinion,  that  the  want  of 
mutuality,  in  regard  to  the  recovery  of  the  debt,  enters  much 
into  the  equity  of  the  case  ;  upon  the  ground  that,  in  case 
of  depreciation  of  the  property,  the  grantee  must  bear  the 
loss,  and  therefore  should  have  all  the  advantage  of  a  failure 
to  perform  the  condition.-^ 

24.  A  mortgagee  assigned  her  interest  in  the  mortgaged 
premises,  in  consideration  of  a  sum  loaned  to  her,  and  prom- 
ised, orally,  to  repay  such  sum  with  interest,  unless  the  as- 
signee should  receive  it  from  the  estate.  Held,  the  mortga- 
gee w^as  liable,  as  trustee  of  the  assignee,  to  this  amount.^ 

25.  Li  Tennessee,  a  mortgage  recited  that  the  defendant 
was  "  indebted  to  the  plaintiff  in  the  sum  of  eighty-nine  dol- 
lars and  ninety-two  cents,  which  should  have  been  paid  on 
the  1st  of  .January,  theretofore."  Held,  a  covenant  to  pay 
money,  upon  which  an  action  of  debt  would  lie.^ 

26.  It  has  been  held  in  Texas,  that  if  a  conveyance,  in 
whatever  form,  is  alleged  and  proved  to  be  a  mortgage  to 
secure  a  loan  of  money,  and  the  property  is  lost  without  the 
mortgagee's  fault ;  he  may  recover  the  money,  though  there 
be  no  express  promise  to  repay  it.^ 

27.  In  Vermont,  a  quitclaim  deed,  with  a  consideration  in 
money  named,  and  a  condition  that  the  grantor  may  re- 
deem on  paying  back  such  consideration,  with  interest,  is 
not  evidence  of  a  debt,  like  a  note  and  mortgage,  but  more 
in  the  nature  of  a  right  to  repurchase.'^ 

28.  In  Alabama,  where  the  maker  of  several  notes,  pay- 
able to  his  own  order,  makes  a  mortgage  to  a  third  person, 
to   secure  their  payment,   he  thereby  admits   that  they  are 

1  Rice  V.  Rice,  4  Pick.  349,  352.     Sec  *  Hills  v.  Elliot,  12  Mass.  26. 

Rice  V.  Bird,  22  ib.  350.  5  Conger  v.  Lancaster,  6  Ycrg.  477. 

-  13  Pick.  415.  «  Stephens  v.  Slierrod,  6  Tex.  294. 

3  See  also  Hint  v.  Sheldon,  13  Mass.  448.  '  Henry  r.  Bell,  5  Verm.  393. 


106  THE   LAW   OF  MORTGAGES.  .      [CH.  VI. 

valid  securities  for  the  payment  of  money  in  the  hands  of  the 
mortgagee,  although  not  regularly  indorsed.^ 

29.  In  South  Carolina,  a  recital,  in  a  mortgage,  of  the 
bond  secured  by  it,  is  not  sufficient  evi«lence  of  the  debt,  un- 
less the  loss  or  destruction  of  the  bond  is  shown  ;  especially 
where,  as  in  South  Carolina,  the  bond  is  negotiable.^ 

30.  In  this  connection,  may  be  stated  the  rule  as  to  the 
personal  liability  of  the  respective  parties,  in  case  of  a  con- 
veyance of  land  mortgaged. 

31.  In  New  York,  it  is  held,  that  the  purchaser  of  land, 
subject  to  mortgage,  the  mortgage  debt  forming  part  of  the 
consideration,  is  bound  to  indemnify  the  grantor,  though  he 
enter  into  no  bond  or  covenant  to  do  so.^ 

32.  A  mortgagor  conveys  to  A.,  who  conveys  to  B.,  and  B. 
to  the  defendants.  There  was  no  agreement  that  B.  should 
be  liable  for  the  debt ;  but  the  deed  to  the  defendants  de- 
scribed the  land,  as  "  subject  to  the  mortgage,  which  is  taken 
as  part  of  the  consideration-money,  and  which  the  purchaser 
agrees  to  pay  and  discharge."  The  mortgagee  brings  a  bill 
to  foreclose,  and  seeks  to  hold  the  defendants  liable  for  the 
deficiency.     Held,  they  were  not  liable.* 

32  a.  Where  land  is  conveyed  expressly  subject  to  a  mort- 
gage thereon,  and  it  is  apparent  that  the  consideration  ex- 
pressed in  the  deed  was  the  estimated  value  of  the  premises 
over  and  above  the  incumbrances ;  those  circumstances  fur- 
nish no  evidence  of  an  agreement  by  the  purchaser  to  be- 
come personally  bound  for  the  payment  of  the  mortgage.^ 

32  b.  The  omission  to  insert  in  a  deed  a  covenant  that  the 
grantee  will  assume  or  pay  a  mortgage,  is  strong  evidence 
that  the  parties  did  not  intend  he  should  be  liable.^ 

33.  In  Virginia,  where  a  purchaser  gives  a  mortgage  for 
the  purchase-money,  and  conveys  the  land,  the  land  will  still 
be  liable  for  the  amount  of  the  mortgage  ;  and,  if  insuffi- 
cient, the  mortgagor  will  be  personally  liable  ;  but  his  ven- 

1  Ilartwcll  V.  Blocker,  G  Ala.  581.  ^  Kin-  i'.  Whitely,  1  Iloft'm.  Cli.  477. 

'^  Clicwnirif:  v.  I'roctor,  2  McC.  CIi.  11.  ''  Tillotsoii  v.  IJoyd,  4  Sandf.  516. 

8  Don-  V.  I'eters,  3  E<hv.  Cli.  132.  ''  Ibiil. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  107 

dee  will  not  be  personally  liable  therefor,  without  a  special 
agreement  to  that  effect.^ 

34.  Prof.  Greenleaf  comes  to  the  conclusion,  that  a  deed, 
merely  containing  the  proviso,  that  if  a  certain  sum  be  paid 
at  a  certain  time,  the  deed  shall  be  void,  without  any  accom- 
panying bond,  note,  or  other  personal  security,  is  merely  evi- 
dence of  a  lien,  on  the  land,  or  of  a  conditional  sale,  unless  it 
contains  an  admission  of  a  debt  due,  either  direct  or  indi- 
rect ;  and  if  the  debt  is  either  thus  admitted  or  can  be  proved 
aliunde,  it  is  recoverable,  as  if  there  were  no  mortgage  ;  un- 
less the  evidence  shows  an  agreement  to  rely  solely  upon  the 
property.  And  this  agreement  would  reasonably  be  inferred 
from  the  absence  of  a  personal  obligation,  contrary  to  gen- 
eral usage.2  («) 

85.  Whether  a  mortgage  to  secure  the  obligation  of  a  third 
person  binds  the  mortgagor  personally,  is  a  question  of  inten- 
tion, depending  on  a  just  and  reasonable  construction  of  the 
whole  instrument.  Such  intention  is  not  proved  by  a  clause 
in  which  the  mortgagor  "  confesses  judgment  for  the  amount 
of  the  debt,  and  agrees,  in  case  of  its  non-payment,  as  pro- 
vided by  the  act,  that  the  law  in  such  cases  made  and  pro- 
vided may  be  strictly  enforced  and  summarily  put  in  execu- 
tion." Such  clause  merely  gives  a  remedy  by  executory 
process  against  the  property  ;  but  does  not  authorize  a  Ji.  fa. 
against  other  property,  nor  the  registry  of  the  act,  so  as  to 
operate  as  a  judicial  mortgage.^ 

36.  In  this  connection  may  be  considered  a  certain  class 
of  mortgages,  of  not  unfrequent  occurrence  ;  the  condition 
of  which  is  not  for  the  payment  of  money,  but  the  perform- 
ance of  some  collateral  act.     The  most  common  conveyances 

^  Bumganlner  v.  Allen,  C  Munf.  439.  ^  New  Orleans,  &c.  v.  Hogan,  1  La. 

-  2  Grcenl.  Cruise,  83  n.  Ann.  K.  62. 


(a)  This  is  expressly  provided  by  statute  in  New  York,  Wisconsin,  and 
Indiana.  2  X.  Y.  Rev.  Sts.  22  ;  AVis.  lb.  eh.  59,  §  G  ;  Ind.  Rev.  Sts.  ch.  29, 
§31. 


108  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

of  this  description,  are  mortgages  made  to  secure  future  5^/7;- 
port  and  maintenance  to  the  mortgagees  or  other  parties;  and 
various  questions  have  been  raised,  as  to  the  validity,  con- 
struction, and  method  of  enforcement  of  such  mortgages.' 

37.  Prof.  Greenleaf  remarks,  that  in  those  States,  where 
the  Courts  have  not  full  equity  jurisdiction,  it  has  been  ques- 
tioned whether  any  deed  can  be  regarded  strictly  as  a  mort- 
gage, unless  the  condition  is  for  the  payment  of  money,  or 
the  performance  of  a  contract  where  the  damages  are  capable 
of  computation  by  the  Court ;  and  whether,  therefore,  condi- 
tions for  general  support,  comfort,  and  maintenance,  good 
behavior,  &c.,  are  susceptible  of  relief,  unless  under  a  general 
equitable  jurisdiction.  In  the  case  of  maintcna?ice,  the  dam- 
age of  course  may  be  computed  by  the  value  of  board  per 
week.^  (b) 

38.  In  a  suit  for  foreclosure  of  a  mortgage,  conditioned 
for  the  support  of  the  mortgagee's  widow,  who  has  deceased ; 
the  question  is  not  how  much  she  received,  but  how  much 
she  was  entitled  to  receive  ;  and  the  mortgagor  cannot  exempt 
himself  from  liability  by  proof  that  she  received  but  a  partial 
support  from  any  person.^ 

1  Sec  cli.  8,  ^  40  et  seq.  '■^  Fcrgujon  v.  Kimball,  3  Barb.   Cli. 

"-  2  Greenl.  Cruise,  80  ii.     See  Noycs     616. 
r.    Sturdivant,   G    Siiepl.    104 ;   Page   v. 
Green,  6  Conn.  338. 


(^)  In  a  suit  in  equity  to  foreclose  a  mortgage,  where  the  obligation,  to 
secure  which  the  mortgage  was  given,  is  unliquidated,  and  there  is  nothing 
before  the  Court  to  show  that  the  amount  due  is  less  than  the  amount  neces- 
sary to  give  the  Court  jurisdiction,  the  Court  is  not  divested  of  its  jurisdiction, 
although  the  master  should  report  a  less  sum  to  be  due.  Ferguson  v.  Kim- 
ball, 3  Barb.  Ch.  616.  In  Louisiana,  the  exact  sum  must  be  expressed  in 
the  act  of  mortgage.  La.  Civ.  Code,  art.  3277.  In  Massachusetts,  Maine, 
and  New  Hampshire,  the  statute  law  has  settled  that  conditions  for  support, 
&c.,  are  sullicient  to  constitute  a  mortgage.  Mass.  Kev.  Sts.  ch.  107,  §§  6,  23 ; 
Me.  Rev.  Sts.  1840,  ch.  125,  §  15 ;  N.  II.  Rev.  Sts.  ch.  131,  §  1.  Where  the 
condition  of  a  mortgage  is,  to  perform  pergonal  scrrices,  and  there  is  a  breach, 
it  seems,  a  conditional  judgment  may  be  rendered  for  the  damages.  Iloyt 
V.  Bradley,  27  Maine,  242. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  109 

39.  Mortgage  from  a  son  to  his  mother,  who  had  the  privi- 
lege of  residing  in  his  house  under  the  will  of  her  husband, 
conditioned  to  "  find  her  firewood  for  one  fire,  to  be  drawn 
and  cut  at  the  door,  fit  for  use."  The  house  being  burnt,  the 
mother  took  up  her  abode  with  another  son,  and  demanded 
firewood  of  the  mortgagor,  to  which  he  replied  that  he  was 
not  bound  to  furnish  it  off  the  farm.  She  then  demanded 
that  he  should  furnish  it  at  the  old  place,  to  which  he  replied 
that  he  would  see  about  it,  but  no  wood  was  furnished  by 
him.  Held,  a  sufficient  demand  and  refusal  to  sustain  an 
action  on  the  mortgage.' 

40.  So  although  she  was  at  times  living  at  some  distance, 
she  having  pointed  out  a  place  of  delivery  within  a  reason- 
able and  convenient  distance.^ 

41.  A  mortgage  was  conditioned,  that  the  mortgagor  should 
keep  a  cow  for  the  mortgagee.  In  consequence  of  improper 
keeping,  the  latter  was  obliged  to  sell  the  cow  at  a  low  price. 
In  a  suit  upon  the  mortgage,  held,  the  plaintiff  was  entitled 
to  judgment  for  the  cost  of  keeping  a  cow  after  the  sale, 
without  having  purchased  one  and  tendered  it  to  the  mort- 
gagor to  be  kept;  the  latter  never  having  offered  to  keep 
another  cow,  nor  given  any  assurance  that  one  should  be 
better  kept.-' 

42.  A  mortgage  was  given,  conditioned  to  support  the 
mortgagee,  his  wife,  and  a  non  compos  daughter,  during  their 
lives  and  the  life  of  the  survivor.  The  father  and  mother 
having  died,  the  daughter  left  the  place  where  support  had 
been  furnished,  and  went  to  a  distant  town,  where  she  became 
chargeable  as  a  pauper.  The  selectmen  notified  those  of  the 
town  which  she  left,  and  where  she  had  her  settlement,  who 
brought  her  back,  and  requested  the  mortgagor  to  support  her 
and  pay  the  expenses  inciured,  but  he  refused.  Held,  no 
breach  of  condition,  there  being  no  evidence  that  he  was  in 
fault,  and  the  town  being  strangers  to  the  contract  for  support.^ 


1  Fiske  V.  Fiske,  20  Pick.  499.  8  ibjd. 

-  Ibid.  *  Rhoadcs  v.  Parker,  10  N.  H.  83. 

VOL.    I.  10 


110  THE  LAW   OF  MORTGAGES.  [CH.  VI. 

43.  But  the  selectmen  having  obtained  the  authority  of  her 
guardian  for  that  purpose,  and  then  applied  to  the  mortgagor 
to  support  her,  to  which  he  replied  that  he  thought  it  best  to 
have  a  trial  about  it;  that  his  counsel  had  told  him,  he  had 
better  let  the  town  support  her,  and  bring  an  action  against 
him,  and  he  would  then  have  a  better  chance  in  a  controversy 
with  those  with  whom  he  had  contracted  for  her  support ; 
held,  this  was  evidence  of  a  refusal  to  support,  and  a  breach 
of  the  condition ;  and  that  it  was  not  necessary,  after  a  re- 
fusal, to  carry  her  to  his  house,  or  to  the  place  provided  by 
him,  and  make  a  demand  of  the  support  there.^ 

44.  Mortgage  by  a  son  to  his  father,  with  condition  to 
"  provide  a  comfortable  room  or  apartment  for  his  father  and 
mother,  together  with  suitable  meat,  drink,  lodging,  and 
apparel,  with  all  things  necessary  for  their  support  and  com- 
fort, both  in  sickness  and  in  health,  suited  to  their  age  and 
condition,  and  with  a  good  horse  and  what  shall  be  necessary 
for  their  comfort  and  convenience,  both  to  meeting  and  to 
visiting  their  friends,  during  their  natural  lives."  At  the  time 
the  mortgage  was  made,  the  father  and  mother,  with  all  their 
children,  lived  on  the  farm.  The  mortgagee  died,  then  the 
mortgagor,  and  the  right  of  redemption  was  sold  to  the  plain- 
tiff; and  subsequently,  the  defendant,  as  administrator  of  the 
mortgagee,  took  possession  for  breach  of  the  condition  as  to 
the  support  of  the  mother.  Upon  a  bill  in  equity  to  compel 
the  defendant  to  acknowledge  satisfaction  of  the  mortgage ; 
held,  the  mother  was  entitled  to  her  entire  support,  indepen- 
dent of  any  labor  to  be  performed  by  her  ;  that  she  was  not 
bound  to  reside  on  the  farm,  to  entitle  her  to  such  support ; 
that  she  could  not  include  in  the  mortgage  the  expense  of  a 
journey  to  visit  a  son,  living  forty  miles  from  the  farm;  and 
that  having  been  supported,  for  some  time  after  the  mortga- 
gor's death,  by  his  son,  without  any  request  from  his  adminis- 
trators, and  after  they  had  offered  to  support  her,  the  cost  of 
her  support  during  that  time  could  not  be  charged  upon  the 
mortgage;.^ 

1  Rlioades  v.  Tarkcr,  10  N.  H.  83.  ''  Thayer  v.  Richards,  19  Pick.  398. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  Ill 

45.  It  has  been  held  that  a  mortgage,  conditioned  for  sup- 
port of  the  mortgagee,  admits  of  compensation ;  and  a  pur- 
chaser from  the  mortgagor  will  be  allowed  to  redeem,  by 
making  compensation  for  past  support,  in  an  amount  to  be 
determined  by  a  master,  and  paying  a  specific  sum  for  the 
future.' 

46.  A  receipt  in  full  of  all  demands  is  no  discharge  of  a 
mortgage,  conditioned  for  the  future  support  of  the  party  who 
gives  the  receipt.  The  word  demands  must  be  understood  to 
refer  to  subsisting  debts,  at  least  to  such  as  are  absolutely 
due  and  susceptible  of  liquidation.  It  cannot  embrace  a 
right  to  future  support,  which  is  in  its  nature  contingent,  de- 
pending upon  the  party's  life  for  its  continuance,  and  upon 
various  uncertain  circumstances  for  its  amount.^ 

47.  In  Massachusetts  it  has  been  held,  that  an  indenture, 
accompanying  a  conveyance  of  land,  whereby  it  is  let  to  the 
grantor,  for  life,  "  for  the  purpose  that  Samuel  should  maintain 
Leonard  for  life,"  and  "  of  securing  to  Leonard  the  main- 
tenance aforesaid,"  constitutes  the  transaction  a  mortgage.^ 
The  Court  remark  :  *  —  "  The  indenture  is  to  be  construed 
with  reference  to  the  whole  instrument,  as  connected  with  the 
deed  of  Leonard  to  Samuel,  and  as  a  part  of  the  transaction. 
An  enlarged  and  liberal,  rather  than  a  microscopic  view  is  to 
be  taken,  in  order  to  ascertain  and  carry  into  effect  the  intent 
of  the  parties.  It  expresses  upon  its  face,  that  it  is  given  by 
Samuel  to  Leonard  for  the  purpose  of  securing  to  Leonard 
the  maintenance  which  Samuel  was  to  provide  for  Leonard 
and  his  wife.  It  is  a  security.  And  this  is  a  sine  qua  non  of 
a  mortgage.  If  the  instrument  be  made  as  a  security  for  the 
payment  of  a  debt  or  the  performance  of  a  duty,  it  is  a  mort- 
gage, and  the  substance  and  not  the  mere  form  of  the  instru- 
ment is  to  be  regarded.  The  effect  of  the  instrument  will 
ascertain  its  legal  character." 

48.  The  question  has  been  raised,  whether  the  provision  in 

1  Austin  V.  Austin,  9  Verm.  420.  3  Lanfair  i\  Lanfair,  18  Pick.  299. 

2  Ibid.  *  Ibid.  303,  304. 


112  THE   LAW   OF  MORTGAGES.  [CH.  VI. 

the  mortgage,  relating  to  payment  of  a  debt,  even  though 
expressed  in  the  form  of  a  condition,  might  not  be  rightly 
described  in  another  instrument,  as  a  covenant. 

49.  Thus  it  is  said,  a  bond,  conditioned  for  the  performance 
of  all  covenants,  payments,  articles,  and  agreements,  comprised 
in  a  mortgage,  is  forfeited  by  non-payment  of  the  mortgage- 
money  at  the  time  stipulated  in  the  mortgage.^ 

50.  In  Briscoe  v.  King,^  w^here  such  a  bond  was  given,  and 
the  mortgage  contained  covenants  against  incumbrances  and 
for  further  assurance,  the  ground  was  taken,  in  defence  against 
an  action  upon  the  bond,  that  as  the  mortgage  contained  no 
covenant  for  payment,  the  proviso  was  merely  in  advantage 
of  the  feoffor,  that  if  he  paid  the  money  he  should  have  back 
the  land  ;  and  it  was  in  his  election  to  pay  the  money  or  lose 
the  land  ;  therefore  the  condition  of  the  bond  did  not  extend 
to  such  payment,  but  was  confined  to  the  other  covenants  in 
the  deed,  namely,  to  save  harmless  from  incumbrances,  &c. 
No  judgment,  however,  was  finally  rendered. 

51.  In  Tooms  v.  Chandler,'^  an  obligation  was  given  to 
perform  all  the  covenants  and  conditions  in  an  indenture  of 
mortgage ;  which  contained  a  proviso,  that  if  the  mortgagor 
paid  the  money  at  the  day,  the  mortgage  should  be  void.  In 
an  action  upon  the  bond,  after  much  deliberation,  the  Court 
decided  for  the  plaintiff. 

52.  Although  a  mortgage  in  this  country  does  not  ordina- 
rily contain  a  covenant  for  payment  of  the  mortgage  debt ;  it 
is  usually  in  the  form  of  a  warranty  deed,  with  the  covenants 
of  title  incident  to  that  form  of  conveyance.  Some  questions 
have  arisen  with  regard  to  the  legal  effect  of  these  covenants, 
more,  particularly  when  considered  in  connection  with  the 
reciprocal  covenants  in  an  accompanying  absolute  deed  from 
the  mortgagee  to  the  mortgagor. 

53.  Upon  the  covenant  against  incumbrances  in  a  mortgage, 
it  is  held  in  general,  that  only  nominal  damages  are  recovered.* 

1  1  Pow.  12  a.  3  2  Lev.  IIG,  ti  Keb.  387. 

'■^  Cro.   Jac.   281;   Bristoe  v.  Knipc,        ^  Kiiiulell  u.  Miillett,  2  Slicpl.  51. 
Yclv.  20G,  2  Lev.  116. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  113 

54.  The  following  case  applies  to  the  covenants  in  a  mort- 
gage, given  back  to  the  grantor  at  the  time  of  receiving  a 
conveyance  from  him,  and  set  up  by  the  grantor  as  a  defence 
to  an  action  upon  his  own  covenants. 

55.  Action  to  recover  damages,  for  breach  of  the  covenant 
of  seizin,  in  a  deed  of  w^arranty  from  the  defendant  to  the 
plaintiff.  Defence,  that  at  the  time  of  the  defendant's  mak- 
ing such  deed,  the  plaintiff  gave  back  to  the  defendant  a 
mortgage  of  the  same  land,  to  secure  the  entire  consideration, 
of  which  no  part  had  been  paid  ;  and  that  the  mortgage  con- 
tained the  same  covenants  as  the  absolute  deed.  It  was  held, 
that  the  covenants  of  the  mortgage  did  not  operate  as  a 
rebutter  to  the  claim  of  the  plaintiff,  and  that  the  action  was 
maintainable.  The  Court  remark  :  — "  It  is  then  said,  that 
(the  defendant's  demand)  should  operate  as  a  rebutter  to  the 
demand  of  the  plaintiff,  to  avoid  circuity  of  action.  The 
principle  of  rebutter  is  one  well  known  in  law,  and  is  to  be 
applied  in  all  proper  cases.  The  present  does  not  seem  to  us 
to  be  one.  It  might  do  injustice  to  the  plaintiff.  The  de- 
fendant holds  the  plaintiff's  notes  of  hand  secured  by  her 
mortgage.  Various  cases  might  be  readily  supposed,  where 
such  a  defence  ought  not  to  prevail ;  as  in  cases  of  large  pay- 
ments advanced  towards  the  purchase-money,  and  a  mort- 
gage to  secure  only  a  small  residue,  and  that,  by  the  terms 
of  the  contract,  to  be  paid  at  some  remote  future  day.  There 
is  no  necessity  for  permitting  this  defence,  with  a  view  of 
protecting  the  rights  of  the  defendant  in  reference  to  his 
counter  demands.  The  entry  of  judgment  may  be  postponed, 
if  the  case  requires  it,  to  await  a  set-off,  after  the  defendant 
shall  have  perfected  a  judgment  on  his  claims.  This  seems 
to  us  a  more  proper  mode  than  to  allow  the  claims  of  the 
defendant,  as  covenantee  under  the  mortgage  deed,  to  defeat 
the  present  action."  ^ 

56.  So  the  grantee  in  the  absolute  deed  may  in  such  case 

1  Sumner  v.  Barnard,  12  Met.  459,  461,  462  ;  ace.  Brown  i'.  Staples,  28  Maine, 
497.     See  Andrews  v.  Wolcott,  16  Barb.  21.  ^ 

10* 


114  THE  LAW   OF   MORTGAGES.  [CH.  VI. 

maintain  an  action  upon  the  covenant  against  incumbrances. 
The  mortgage  is  no  estoppel,  because  the  mortgagor  may- 
have  removed  the  adverse  title  before  making  the  mortgage. 
For  the  same  reason,  his  action  is  not  barred  upon  the  ground 
of  preventing  a  circuity  of  action.  In  these  points  of  view, 
the  two  deeds  are  regarded  not  as  concurrent  but  successive. 
The  mortgage  is  no  bar  to  the  action  for  the  additional  reason, 
that  such  covenant  is  not  assignable,  and  therefore  did  not 
pass  back  to  the  mortgagee.^ 

57.  The  grantee  in  a  warranty  deed,  with  a  mortgage 
back,  with  covenants,  brings  an  action  against  one  who  used 
a  highway  which  passed  over  the  land,  upon  the  grantor's 
representation  that  it  was  not  a  legal  road,  but  fails  in  the 
suit.  Held,  the  mortgage  did  not  constitute  a  rebutter,  but 
the  grantee  might  bring  an  action  upon  the  covenant,  and 
recover  the  costs  of  the  other  suit.^ 

58.  But  it  has  been  held,  that  where  the  grantee  in  a  war- 
ranty deed  gives  back  a  bond  to  reconvey  on  demand,  and  in 
the  mean  time  allows  the  grantor  to  occupy ;  no  action  can 
be  maintained  upon  the  covenants  in  the  deed.^  (c) 

1  Hubbard  v.  Norton,  10  Conn.  422.  ^  Hatch  v.  Kimball,  2  Shcpl.  9. 

2  Haynes  v.  Stevens,  11  N.  H.  28. 


(c)  The  following  miscellaneous  decisions  relate  to  the  operation  of  cove- 
nants made  in  reference  to  or  connection  with  a  mortgage,  though  not 
inserted  in  the  mortgage  itself.  (See  ch.  19.)  It  has  been  held,  that  where 
land  is  sold,  with  a  covenant  against  incnhibrances,  and  no  eviction  has 
taken  place,  or  payment  been  made  of  the  mortgage  debt ;  the  mortgage 
cannot  be  set  up  in  defence  to  a  suit  for  the  price.  Pomeroy  v.  Burnett, 
8  Blackf.  142.  But  if  the  mortgage  exceed  the  debt,  a  court  of  equity  will 
enjoin  the  suit,  until  the  incumbrance  be  reduced  to  the  amount  of  the  debt. 
Buell  V.  Tate,  7  Blackf.  55.  Where  one  takes  a  deed  without  covenants, 
knowing  of  incumbrances  upon  the  land,  and  gives  back  a  mortgage  for 
the  price,  but  it  does  not  appear  that  he  agreed  to  assume  the  Incumbrances  ; 
he  may  pay  them,  and  deduct  the  amount  from  the  mortgage.  Wolbert  f. 
Lucas,  10  Barr,  73.  Where  a  mortgagee,  under  a  prior  mortgage,  threat- 
ened to  enter  and  expel  the  covenantee,  who  yielded  to  the  claim,  against 
which  he  could  not  defend,  it  is  a  breach  of  the  covenant  of  warranty ; 


CH.  YI.]  PERSONAL  LIABILITY,   ETC.  115 

59.  Where  land  was  conveyed  with  covenants  of  general 
warranty,  and  at  the  same  time  mortgaged  back  with  like 
covenants,  held,  the   assignee  of  the  mortgagee  could  not 


upon  the  ground,  that  an  actual  ouster  or  expulsion  by  force  of  a  paramount 
title  is  equivalent  to  an  eviction  by  legal  process.  Sprague  v.  Baker,  17 
Mass.  586.  Where  a  mortgage  is  made  to  indemnify  the  mortgagee  against 
an  incumbrance  on  other  land  in  favor  of  a  third  person,  which  land  the 
mortgagee  conveys  with  covenants  against  incumbrance,  and  agrees  to  re- 
deem the  one  to  such  third  person  ;  it  seems,  the  grantee  may  claim  indem- 
nity from  the  mprtgaged  premises,  if  evicted,  or  obliged  to  pay  such  incum- 
brance. Upham  V.  Brooks,  2  W.  &  M.  407.  This  right  is  strengthened  by 
his  being  assignee  and  grantee  of  the  mortgagor;  and  he  is  entitled  to  re- 
cover the  premises  from  an  assignee  of  the  mortgagee,  on  paying  any  debt 
from  the  mortgagee  to  the  assignee,  secured  In  the  mortgage.  lb.  But  the 
assignee  cannot  hold  the  premises  against  third  persons  entitled  to  redeem, 
for  any  sum  due  him  from  the  mortgagee,  but  not  included  in  the  mortgage. 
lb.  If  the  mortgagee  has  become  insolvent,  and  his  covenant  thereby  worth- 
less, yet  the  grantee  should  obtain  releases  to  the  mortgagee  on  his  cove- 
nants to  the  grantee,  or  file  a  good  bond  of  indemnity  against  them.  The 
assignee  of  the  mortgagee  is  a  trustee  of  the  land,  to  indemnify  against  the 
incumbrance  referred  to  in  the  mortgage.  lb.  The  assignee,  being  in  pos- 
session, was  held  bound  to  pay  rents  when  they  ought  to  have  been  received, 
whether  actually  collected  or  not.  lb.  Conveyance  by  a  mortgagor  in  pos- 
session, with  a  bond  of  indemnity  to  the  purchaser,  against  the  mortgage. 
Judgment  being  afterwards  recovered  upon  the  mortgage  against  the  terre- 
tenant,  without  actual  notice  to  the  mortgagor,  and  the  land  sold  on  execu- 
tion ;  held,  in  a  suit  upon  the  bond,  if  the  defendant  had  notice  of  the  prior 
suit,  he  was  bound  by  the  judgment,  and  must  repay  the  purchase-money  to 
the  plaintiff.  If  he  had  not  notice,  he  might  make  the  same  defence  which 
he  could  have  made  to  the  action  on  the  mortgage.  Gulp  v.  Fisher,  1  Watts, 
494.  Where  land,  subject  to  mortgage,  is  conveyed  with  warranty,  the 
covenant  runs  with  the  land,  and  is  bound  by  the  lien  of  a  judgment  against 
the  grantee  or  his  assigns ;  and  if  the  grantor  subsequently  acquires  a  title 
to  the  land,  under  a  foreclosure  of  the  mortgage,  such  title  accrues  to  the 
benefit  of  a  purchaser  at  the  sheriff's  sale  under  the  judgment,  and  the  for- 
mer is  estopped  from  questioning  the  title  of  the  latter.  Kellogg  r.  AYood, 
4  Paige,  578.  The  grantor  is  also  bound  to  indemnify  the  purchaser  at  the 
sheriff's  sale  against  the  mortgage,  if  it  remains  unpaid,  or  if  the  lien  is  con- 
tinued by  the  substitution  of  a  new  mortgage  for  the  purchase-money.  lb. 
If  one  owning  land  subject  to  mortgage  conveys  it  with  warranty,  and  the 
purchaser  conveys  to  a  third  person  with  warranty,  both  covenants  run 


116  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

maintain  an  action  upon  the  covenants  in  the  mortgage,  and 
recover  for  an  eviction  under  a  judgment  for  dower  against 
him  in  favor  of  the  widow  of  the  mortgagee.' 

60.  Where  land  was  conveyed,  and  at  the  same  time  mort- 
gaged back,  (both  conveyances  being  with  covenants  of  war- 
ranty,) and  the  mortgage  was  assigned,  and,  after  the  assign- 
ment, the  mortgagor  acquired  a  title  to  the  same  premises 
under  a  sale  for  taxes  assessed  before  said  conveyances,  held, 
the  mortgagor  could  not  set  up  such  title  adversely  to  his  owji 
conveyances,  but  it  enured  instantly  to  the  benefit  of  the 
assignee  of  the  mortgage,  and  the  remedy  of  the  mortgagor 
was  on  his  grantor.  But  if  one  afterwards  merely  contracts 
to  buy  a  part  of  the  premises  of  one  of  the  mortgagors,  it 
does  not  prevent  him  from  acquiring  a  title  under  the  tax 
sale,  and  holding  it  for  his  own  benefit.''^ 

61.  The  doctrine,  that  a  grantee  from  one  who  had  no  title 
at  the  time  of  the  conveyance,  but  has  subsequently  acquired 
one,  takes  it  by  estoppel,  in  virtue  of  the  covenants  in  the 
deed,  has  been  applied  to  a  mortgage. 

62.  Two  successive  mortgages,  with  covenants  of  warranty, 
were  made  of  the  same  land.  The  second  mortgagee  bought 
the  first  mortgage,  receiving  from  the  first  mortgagee  a  quit- 
claim deed.  On  the  same  day,  the  second  mortgagee  gave 
a  mortgage  with  covenants  to  a  creditor.  There  was  no 
proof  which  of  the  two  last  named  deeds  was  first  delivered ; 
but  the  grantee  of  one  was  a  subscribing  witness  to  the  other, 
and  both  were   attested  by,  and  acknowledged  before,  the 

1  Smith  V.  Caiincll,  32  Maine,  123.  -  Gardner  ;;.  Gcrrisii,  33  Maine,  46. 


witli  the  land ;  and  if  the  second  purchaser  afterwards  conveys  to  the 
original  grantor,  the  covenants  in  the  deed  from  the  first  purchaser  are 
merged  at  law,  so  far  as  respects  the  lien  of  the  mortgage.  But  if  in  the 
mean  time  the  first  purchaser  has  agreed  with  his  grantor  to  pay  off  the 
mortgage,  the  covenants  arc  not  merged  in  equity,  but  will  pass  to  a  subse- 
quent purchaser,  and  give  him  an  equitable  claim  against  the  first  purchaser, 
for  an  indemnity  against  the  mortgage.     lb. 


CH.  VI.]  PERSONAL   LIABILITY,    ETC.  117 

same  magistrate.  The  right  of  redemption  of  the  original 
mortgagor  having  expired,  the  last  mortgagee  brings  eject- 
ment against  him  for  the  land.  Held,  the  deed  to  the  plain- 
tiff should  be  presumed  to  have  been  made  after  the  deed  to 
his  grantor ;  or,  if  nq,t,  the  covenants  in  the  deed  first  executed 
had  the  effect  to  vest  a  title  in  the  plaintiff,  when  the  convey- 
ance was  made  to  him,  by  estoppel;  and  this  title  was  effect- 
ual against  the  defendant.' 

1  Dudley  v.  Cadwell,  19  Conn.  218. 


118'  THE   LAW   OF   MORTGAGES.  [CH.  VII. 


CHAPTER   VII. 

POWER    OF     SALE. 

1.  Notwithstanding  the  inflexible  rule  considered  at 
length  in  a  former  chapter,'  against  impairing  or  abridging 
the  equity  of  redemption  by  any  special  agreement  of  parties, 
the  principle  seems  to  be  now  well  established,  though  after 
great  doubt  and  discussion,  that  a  clause  may  legally  be  in- 
serted in  the  mortgage  deed,  empow^ering  the  mortgagee, 
upon  breach  of  condition,  to  make  sale  of  the  mortgaged 
premises,  pay  his  debt  from  the  proceeds,  and  account  with 
the  mortgagor  for  the  balance.  This  privilege  of  the  mort- 
gagee, arising  from  an  express  provision  of  the  deed,  w^ould 
seem  at  first  sight  a  departure  from  the  general  principle 
above  referred  to,  inasmuch  as  it  allows  a  particular  contract 
to  control  or  override  the  broad,  equitable  rule  of  protecting 
the  mortgagor's  rights  against  any  hard  terms  which  his 
peculiar  necessities  might  impose  upon  him.  A  moment's 
reflection,  however,  shows  a  radical  difference  between  the 
cases  to  which  this  rule  has  been  applied,  and  the  one,  now 
under  consideration,  of  a  power  to  sell.  In  the  former,  by  a 
breach  of  condition,  the  estate  is  absolutely  forfeited,  and, 
with  its  whole  value  or  proceeds,  forever  lost  to  the  mortgagor. 
In  the  latter,  it  is  sold,  and,  as  will  be  seen,  must  be  fairly 
and  judiciously  disposed  of;  and  the  mortgagor  receives  the 
avails,  after  his  debt  is  fully  liquidated.  The  power  of  sale 
is  said  to  apply  solely  to  the  remedy^  and  not  to  impair  any 
ri^ht  of  the  mortgagor.^  [a) 

1  See  ch.  4.  Bennett  v.  l^^nion,  Sc.,  5  Humph.  612; 

-  Wilson  V.  Troup,  2  Cow.  195.  Sec  Young  v.  Roberts,  21  Eug.  Law  &  Eq. 
Dolison    V.    lliiccy,   3    Saudf.    Ch.    60;     571. 

(a)  So  on  the  other  hand  it  does  not  bar  the  mortgagee's  right  to  fore- 
close in  equity.     Marriott  v.  Givens,  8  Ala.  GDI.     The  civil  law  implies  a 


CH.  VII. ]  POWER   OF   SALE.  119 

2.  In  consequence  of  the  delays  incident  to  the  usual  equity 
of  redemption,  a  power  of  sale  has  now  become  a  very  fre- 
quent provision  in  deeds  of  mortgage.  It  will  be  profitable, 
therefore,  as  indicating  the  most  desirable  form  in  which  this 
power  may  be  expressed,  and  the  proper  safeguards  of  the 
mortgagor's  rights,  with  which  its  exercise  should  be  sur- 
rounded, to  take  a  general  view  of  the  judicial  discussions, 
through  which  the  principle  in  question  has  been  arrived  at. 
Perhaps  there  is  no  one  in  the  whole  law  of  mortgages,  at 
last  firmly  established,  which  in  its  progress  has  been  more 
seriously  questioned  or  more  earnestly  resisted,  as  a  manifest 
infringement  upon  the  privilege,  so  carefully  guarded,  of  re- 
deeming estates,  which  have  been  conveyed  only  by  way  of 
security  for  debt.  The  final  result  of  the  decisions  is  said  to 
be,  that  a  power  of  sale  may  be  exercised  by  the  mortgagee, 
where  it  is  free  from  doubt}  {b)  It  wiU  be  jealously  watched, 
and  declared  void  for  the  slightest  unfairness  or  excess,  or  for 
any  thing  which  prevents  competition. ^ 

3.  Mr.  Coventry  says  : '^ — "  Mortgages  of  this  description 

1  CurlinfT   v.   Shuttleworth,   6   Birif^.  6  Miss.  273;  Destrehan  v.  Scudder,  11 

121.     See  Green  v.  Tanner.  8  Met.  423  ;  Miss.  484. 

Wilson  V.  Troup.  2  Cow.  19.5;  Clav  v.  -  Longwith  v.  Butler,  3  Gilm.  (111.)  32. 

Willis,  1  B.  &  C.3G4 ;  Gorson  v.  Blakey,  ^  i  ^ow.  9  a,  n.  1. 


power  of  sale  in  the  mortgagee,  and  even  an  express  agreement  -will  not  de- 
prive him  of  it.  1  Dom.  360.  In  Virginia,  it  is  said  to  be  invalid.  4  Kent, 
148,  n.  It  has  been  held  in  Virginia  (Taylor  v.  Chowning,  3  Leigh,  654,) 
that  a  sale  under  a  power  is  voidable  by  the  mortgagor,  the  character  of 
creditor  and  trustee  being  inconsistent ;  but  if  the  sale  is  a  foir  one,  and 
acquiesced  in  by  the  mortgagor,  it  -will  bind  him.  In  Ohio,  a  power  of  sale 
may  be  given  to  a  third  person  for  the  mortgagee's  benefit.  And  a  sale 
after  due  advertisement  will  be  binding  and  pass  the  whole  title,  though  a 
bill  to  foreclose  is  pending.     Brisbane  r.  Stoughton,  1 7  Ohio,  482. 

(h)  Mr.  Coventry  remarks  (1  Pow.  14 'n.)  that  the  case  of  Stabback  r. 
Leat,  a  leading  decision  upon  this  subject,  (Coop.  46,)  when  attentively  con- 
sidered, does  not  militate  with  the  doctrine  laid  down  by  him  as  to  the  valid- 
ity of  a  power  of  sale ;  and  that  the  report  of  the  case  is  taken  from  a  hasty 
note  on  a  brief,  and  has  very  little  to  recommend  it,  either  in  terms  or  in 
substance. 


120  THE  LAW   OF  MORTGAGES.  [CH.  VII. 

are  comparatively  of  modern  date.  Their  validity  was  at  first 
much  questioned,  and  when  the  doubts  surrounding  their 
introduction  were  removed,  they  were  for  a  considerable  time 
and  are  even  now  in  some  degree  viewed  as  a  harsh  measure, 
and  only  to  be  used  where  the  money  lent  approaches  very 
nearly  the  value  of  the  estate  mortgaged,  or  where  the  inter- 
est is  likely  to  run  in  arrear.  A  mortgage  of  this  description 
is  certainly  a  prompt,  powerful  security,  compared  with  the 
common  mode  of  mortgaging.  It  is  however  not  inequitable 
in  its  results.  It  presses  hard  upon  the  mortgagor  in  point 
of  time,  but  it  takes  no  unfair  advantage  of  him  in  the  end ; 
for  after  payment  of  the  money  lent,  the  surplus  is  handed 
over  to  the  borrower,  and  not  kept  by  the  mortgagee,  as  is 
the  case  on  a  foreclosure.  The  evil  of  the  former  mode  of 
mortgaging  is,  that  the  mortgagee,  in  proceeding  for  the 
recovery  of  his  money,  is  liable  to  be  delayed  for  an  indefinite 
time  in  chancery.  The  new  mode  is  framed  with  a  view  to 
a  settlement  out  of  court." 

4.  Upon  the  same  subject  he  further  remarks  :  ^  —  "At 
present,  the  principles  of  a  sale  and  mortgage  are  entirely 
distinct.  In  a  mortgage,  the  lender  has  nothing  to  do  with 
the  land,  he  looks  merely  to  the  security  and  repayment  of 
his  money.  In  a  sale,  the  purchaser  gives  up  his  money  for- 
ever, and  looks  solely  to  the  land.  It  must  be  evident,  that 
the  principles  applicable  to  the  one  transaction  essentially 
differ  from  those  governing  the  other.  The  mode,  it  is  ap- 
prehended, which  best  accomplishes  the  object  intended,  is 
one,  where  a  mortgage  with  all  its  incidents  is  preserved,  and 
the  mortgagee  himself  is  empowered  to  sell,  if  his  money  be 
not  paid  at  the  expiration  of  six  months'  notice.  It  will  be 
observed,  that  in  making  the  mortgagee  entire  master  of  the 
estate,  he  is  not  only  invested  with  the  control  of  his  own 
property,  but  is  also  a  trustee  of  the  equity  of  redemption,  with 
absolute  power  to  dispose  thereof,  not  exactly  for  the  best 
advantage  of  his  cestui  que  trust,  but  for  his  own  benefit,  so 

1  1  Tow.  9  a,  n.  1 .    Sec  General  v.  Hardy,  4  Eng.  Law  &  Eq.  44  ;  supra,  ch.  1 ,  §  35. 


CH.  VII.]  POWER   OF   SALE.  121 

far  at  least  as  his  trusteeship  stands  in  the  way  of  a  peremp- 
tory or  immediate  realization  of  his  money.     This  is  a  char- 
acter incompatible  with  a  trustee  ;  he  is  not  free  to  act  for 
the  exclusive  benefit  of  his  cestui  que  trust ;  he  is  first  to 
serve  his  own  purpose  regardless  of  those  for  whom  he  stands 
trusted,  and  then,  having  secured  himself,  he  becomes  a  stake- 
holder as  to  the  residue  for  the  mortgagor.    This  inconsistent 
character  is  the  most  objectionable  feature  of  the  form  before 
referred  to,  and  it  appears  to  have  received  the  censure  of  the 
present  Lord  Chancellor  ;  yet  it  is  the  editor's  favorite  form, 
as  he  had  occasion  to  feel  the  inconvenience  of  the  mode 
recommended   by  his    Lordship.     In   a   late   case   not   yet 
reported,  Lord  Eldon  is  understood  to  have  said,  'here  the 
mortgagee  is  himself  made  the  trustee.     It  would  have  been 
more  prudent  for  him  not  to  have  taken  upon  himself  that 
character.     But  it  is  too  much  to  say,  that  if  the  one  party 
has  so  much  confidence  in  the  other  as  to  accede  to  such  an 
arrangement,  this  Court  is  for  that  reason  to  impeach  the 
transaction.      It  is  next  provided,'  continued  his  Lordship, 
'  that  if  the  mortgagor  shall  make  default  in  paying  the  sums 
stated  at  the  appointed  time,  the  mortgagee  may  make  sale, 
and  absolutely  dispose  of  the  premises  conveyed  to  him.     It 
must  be  recollected,  that  this  is  a  clause  to  be  acted  upon, 
not  by  a  middle  person,  but  the  mortgagee  is  himself  made 
trustee  to  do  all  those  acts.     The  deed  seems  to  me  of  a  very 
extraordinary  kind,  and  there  are  clauses  in  it  upon  which  it 
would  be  very  difficult  to  induce  a  court  of  equity  to  act.' 
Roberts  v.  Bozon,  Chan.  Feb.  1825,  Ms." 

5.  Mr.  Coventry  proceeds  to  remark,  that,  "  the  above  ob- 
servations of  his  Lordship  were  thrown  out  in  the  exuber- 
ance of  his  dubitations,  and  were  perfectly  gratuitous,  and 
obviously  of  a  first  impression ; "  and  to  express  his  own  de- 
cided preference,  in  point  of  convenience  and  simplicity,  of 
the  practice  which  Lord  Eldon  considered  of  doubtful  pro- 
priety, over  the  other  method,  of  resorting  to  the  aid  of  trus- 
tees. "  In  some  deeds,  assuming  the  character  of  a  mort- 
VOL.    I.  11 


122  THE   LAW   OF   MORTGAGES.  [CH.  VII. 

gage,  with  trusts  for  sale,  it  will  be  found  that  the  proviso 
for  redemption,  and  every  feature  of  the  ordinary  mortgage 
is  omitted.  This  converts  the  deed  into  a  conveyance  for 
the  payment  of  debts  ;  and  it  seems  clear,  that,  to  such  a 
species  of  mortgage,  if  it  can  be  so  called,  the  peculiar  doc- 
trines of  tacking,  priority,  foreclosure,  &c.,  are  irrelevant. 
Indeed,  such  an  instrument  may  be  more  appropriately  de- 
nominated a  composition-deed  than  a  mortgage ;  and  it  is 
apprehended,  that  the  learning  relating  to  that  description  of 
deed  will  be  found  applicable  to  a  conveyance  by  way  of 
mortgage,  without  a  proviso  for  redemption."  Mr.  Coventry 
cites,  as  sustaining  these  views,  the  case  of  Martha  Pettit, 
(Vice-Chan.  12th  Aug.  1825,)  in  which  there  was  a  convey- 
ance to  and  to  the  use  of  the  petitioner,  her  heirs,  &c.,  in 
trust,  that  she  and  they  should,  immediately,  or  when  they 
should  think  fit,  with  or  without  the  consent  of  the  grantor, 
sell  the  estate,  and  stand  possessed  of  the  proceeds  in  trust, 
first,  to  retain  and  discharge  the  sum  of  X  1,200  and  interest, 
being  a  sum  borrowed  previously  upon  a  deposit  of  title- 
deeds,  and  a  covenant  to  execute  a  future  mortgage,  the  fu- 
ture interest  and  the  expenses  of  the  trust,  and  pay  over  the 
surplus  to  the  grantor.  Between  the  loaning  of  the  money 
and  the  execution  of  this  deed,  the  petitioner  lent  to  the 
grantor  £1,350,  with  a  warrant  of  attorney  to  confess  judg- 
ment. The  petition  was  to  tack  the  judgment  debt  to  the 
mortgage,  the  grantor  having  become  bankrupt.  The  Vice- 
Chancellor  held,  that  the  conveyance  was  not  a  mortgage, 
but  a  conveyance  in  trust  to  sell  for  payment  of  debts,  and 
ordered  that  the  petitioner  should  reconvey,  upon  receiving 
X  1,200  and  interest. 

6.  Upon  the  same  subject,  Mr.  Powell  remarks :  ^  —  "I  am 
not  aware  that  any  case  has  occurred,  where  the  transaction 
appears  to  have  been,  in  its  original  nature,  a  mortgage  or 
pledge  by  way  of  security  for  money,  in  which  the  validity 
of  a  sale  under  a  trust  of  this  nature,  vested  in  ti'ustees, 
without  the  concurrence  of  the  mortgagor  or  his  representa- 

1  1  Pow.  10. 


CH.   VII.]  POWER   OF   SALE.  123 

tives,  or  a  decree  for  foreclosure,  or  for  sale  for  payment  of 
the  money  lent,  has  come  under  the  consideration  of  a  court 
of  equity  ;  but  unless  such  trust  for  sale  be  considered  as 
clearly  distinguishable  in  principle  from  a  power  to  sell,  in 
default  of  payment  at  a  limited  period,  lodged  in  the  mort- 
gagee himself,  the  opinion  of  the  Court  in  the  case  of  Croft 
V.  Powel,^  seems  to  me  to  raise  at  least  considerable  grounds 
for  doubting,  whether  the  trustees  alone,  in  such  a  case,  can 
make  an  absolute,  irredeemable  title,  without  the  direction  of 
a  court  of  equity." 

7.  The  case  referred  to  was  substantially  as  follows :  A. 
conveyed  an  estate  to  B.,  taking  back  a  defeasance,  which 
provided,  that,  upon  payment  of  a  certain  sum  within  one 
year,  B.  should  reconvey  ;  but,  if  he  failed  to  pay  it  within 
the  year,  B.  should  mortgage  or  absolutely  sell  the  lands  free 
from  redemption,  and  from  the  proceeds  pay  the  debt,  and 
account  for  the  balance  to  A.  Some  years  afterwards,  B. 
conveyed  to  C,  the  defeasance  being  mentioned  and  ex- 
cepted in  the  deed,  and  A.  knowing  and  assenting  to  the 
previous  agreement  for  sale.  A.  brings  a  bill  to  redeem 
from  C.  Held,  as  between  A.  and  B.,  the  conveyance  was 
a  mortgage,  and  in  B.'s  hands,  redeemable  at  any  time  ;  and 
that,  whether  B.  might  have  conveyed  an  irredeemable  estate 
to  C.  or  not,  the  express  exception  of  the  defeasance  in  the 
deed  to  C.  showed  an  intention  to  leave  it  still  in  force. 
The  case  was  distinguished  from  that  of  a  trustee,  author- 
ized to  sell  for  payment  of  debts,  &c.,  there  being,  in  such 
case,  no  original  mortgage  and  no  one  to  redeem.  The 
Court  further  remarked,  that  C.  would  have  required  A.  to 
join  in  the  deed,  had  he  expected  an  absolute  title  ;  and  that, 
as  he  bought  with  notice  of  the  trust  with  which  B.  was 
chargeable,  it  was  also  binding  on  him. 

8.  Upon  this  case  Mr.  Powell  remarks,^  that  it  throws  a 
doubt  over  the  efficacy  of  a  power  to  sell,  in  passing  an  irre- 
deemable title,  no  less  where  the  power  or  trust  is  vested  in 

1  Com.  R.  G03.  2  I  po^-.  n. 


124  THE  LAW  OF   MORTGAGES.  [CH.  VII. 

the  mortgagee  himself,  than  where  it  is  vested  in  trustees ; 
because  the  difference  betw^een  these  cases  is  not  in  principle 
and  substance,  but  merely  in  form,  which  courts  of  equity- 
will  not  regard.  On  the  other  hand,  Mr.  Coote  says,'  the 
case  of  Croft  v.  Powel  was  considered  as  raising  considera- 
ble grounds  for  doubt  as  to  the  validity  of  powers  to  sell ; 
but,  so  far  from  it,  it  will,  on  consideration,  be  seen  to  be 
rather  an  authority  in  favor  of  these  powers. 

9.  A  second  mortgage  was  made,  subject  to  the  first,  to 
secure  a  sum  specified,  and  also  future  advances,  with  a  pro- 
viso that,  unless  payment  should  be  made  within  fourteen 
days  after  demand,  it  should  be  lawful  for  the  mortgagee, 
and  he  was  thereby  required,  to  sell  the  premises  either  ab- 
solutely or  conditionally,  or  to  lease  them  for  any  number  of 
years,  at  such  rents  as  he  might  think  proper ;  and,  from  the 
proceeds,  first,  to  pay  the  expenses  of  sale,  then  the  first 
mortgage,  unless  the  sale  were  made  subject  thereto,  then 
the  second  mortgage,  and  the  surplus  to  the  mortgagor.  It 
was  covenanted,  that  the  mortgagor  should  join  in  the  sale, 
and  execute  the  conveyance  ;  but  further  declared,  that  this 
should  not  be  necessary  to  perfect  the  title,  but  that  it  was 
intended  only  for  the  satisfaction  of  the  purchaser.  Upon  a 
bill  in  equity,  by  an  assignee  of  the  mortgage,  to  enforce  an 
agreement  to  purchase  the  premises ;  it  was  held,  by  Sir 
William  Grant,  that  the  defendant  could  not  require  that 
the  mortgagor  should  be  a  party  to  the  conveyance  ;  the 
covenant  to  that  effect  being  a  mere  contract  between  the 
parties  to  the  mortgage  ;  and  that  the  power  of  sale  was  not 
in  any  way  inconsistent  with  the  nature  of  the  transaction, 
as  a  mortgage .2 

10.  In  Sanders  v.  Richards,'^  a  legal  mortgage  with  a 
power  of  sale  was  created  by  an  administrator,  in  favor  of 
one  who  held  the  title  deeds,  by  way  of  deposit  from  the 
intestate,  to  secure  a  debt  from  the  latter,  and  a  sum  ad- 
vanced  to  the  administrator.     The   mortgagee   files  a   bill 

1  Cootc,  171.  2  Colder  I?.  Morgan,  18  Vcs.  344.  3  2  0011.568. 


CH.  VII.]  POWER   OF   SALE.  125 

against  a  purchaser  for  specific  performance.     Held,  the  ad- 
ministrator and  cestuis  que  trust  must  be  made  parties. 

11.  The  plaintiff,  being  indebted  to  the  defendant,  gave 
him  an  absolute  deed  of  his  farm,  taking  back  a  defeasance. 
He  afterwards  received  further  advances,  till  he  owed  about 
$600.  The  parties  then  agreed,  that  the  defendant  should 
have  the  farm  for  $800,  and  the  defendant  gave  the  plaintiff 
a  note  for  the  excess  of  that  sum  over  the  mortgage  debt, 
and  the  defeasance  was  surrendered ;  but  it  was  verbally- 
agreed,  that  the  defendant  should  sell  the  farm,  and  the 
plaintiff  should  have  what  he  received  over  $800,  after  pay- 
ing him  for  his  time  and  trouble.  The  defendant  accord- 
ingly sold  the  farm  at  auction,  and  himself  became  the  pur- 
chaser. Held,  the  transaction  constituted  a.  mortgage,  with 
power  of  sale,  and  the  plaintiff  was  entitled  to  redeem.^ 

12.  The  sale  may  be  made  upon  special  conditions,  if  not 
of  a  depreciating  character.^  It  has  been  said,  that  if  the 
power  is  sought  to  be  exercised  for  exorbitant  purposes, 
without  due  regard  to  the  interests  of  the  parties,  the  Court 
will  interfere  ;  but  not  without  a  deposit  of  the  sum  to 
which  the  mortgagee  is  entitled.^ 

13.  The  notice  required  by  the  power  of  sale  need  only  be 
given  to  the  mortgagor  and  those  claiming  under  him,  and 
not  to  those  claiming  by  paramomit  title  to  him,  but  subject 
to  the  mortgage  ;  even  though  they  may  have  a  right  to  re- 
deem, and  to  an  account  of  the  proceeds  of  sale.^ 

14.  Where  a  power  of  sale  is  reserved,  with  a  direction 
that  the  surplus  produce  shall  be  paid  to  the  mortgagor,  his 
executors  and  administrators  ;  if  a  sale  occurs  in  the  lifetime 
of  the  mortgagor,  the  surplus  is  personal  estate,  if  after  his 
death,  real  estate.^  (c) 

1  Hobson  V.  Bell,  2  Beav.  17.  *  Major  i-.  Ward,  5  Hare,  598. 

2  Hyndman  v.  Hyndman,  19  Verm.  9.         &  Wright  v.  Rose,  2  Sim.  &  Stu.  323. 

3  Matthie  v.   Edwards,  2  Coll.  465 ; 
Coote,  174,  175. 

(c)  In  New  York  the  surplus  goes  to  heirs,  and  is  assets.  Moses  v.  Mur- 
gatroyd,  1  Johns.  Ch.  119. 

11* 


126  THE  LAW  OP  MORTGAGES.  [CH.  VII. 

15.  It  is  remarked  by  Mr.  Coventry,'  that  a  power  of  sale, 
not  coupled  with  an  interest,  would  not  perhaps  authorize  a 
power  to  lease ;  but  as  the  mortgagee  after  default  becomes 
absolute  owner,  with  power  to  sell  and  convey  in  fee,  perhaps 
he  may  make  a  lease,  which  is  a  sale  pro  tanto.  That  a  power 
to  sell  implies  a  power  to  mortgage^  which  is  a  conditional 
sale,  is  asserted  in  the  text ;  but  there  is  an  obvious  difference 
between  the  case  alluded  to  and  the  one  here  contemplated. 
A  power  to  sell  may  by  possible  construction  be  held  to 
authorize  a  sale  only ;  and  it  may  be  contended  that  the 
mortgagee  is  authorized  to  sell  and  not  to  lease,  so  as  to  bind 
the  mortgagor,  except  in  cases  of  necessity.  The  power  of 
sale  in  a  mortgagee  is  construed  rigidly,  and  will  not,  it  is 
apprehended,  warrant  the  exertion  of  any  power  not  definitely 
expressed.  These  powers  are  not  ordinary  powers  operating 
by  means  of  limitation  of  use,  but  trusts^  declared  on  the 
legal  estate  in  the  mortgagee,  giving  him  powers  more  exten- 
sive than  he  would  have  as  mortgagee.  As  to  all  powers 
therefore  not  expressly  given,  he  must  remain  as  an  ordinary 
mortgagee,  and  can  lease  only  in  case  of  necessity,  {d) 

16.  In  the  case  of  Eaton  v.  Whitingj^  in  Massachusetts,  it 
was  contended,  that  the  insertion  of  a  power  of  sale,  in  a 
deed  which  in  other  respects  had  the  form  of  a  mortgage,  so 
far  changed  the  nature  of  the  mortgagee's  interest,  that,  con- 
trary to  the  general  rule,  it  was  subject  to  attachment  by  his 

1  1  Pow.  61  a,  n.  23  pjck.  490,  492. 


(cZ)  Where  a  power  to  sell  is  given,  not  for  any  special  object,  it  includes 
the  power  to  mortgage.  Sampson  v.  Williamson,  6  Tex.  102.  See  Albany 
V.  Bay,  4  Comst.  9 ;  Ch.  22  a.  Powers  are  sometimes  executed  by,  as  well  as 
contained  in,  a  mortgage.  Upon  this  subject  it  is  said,  the  execution  of  a 
power  by  way  of  mortgage,  whether  in  fee  or  for  years,  is  but  an  appoint- 
ment p7-o  tanto,  unless  there  be  on  the  face  of  the  instrument  or  from  a  com- 
parison of  the  wording  of  diflerent  instruments  of  mortgage,  an  indication 
of  an  ulterior  intention,  inconsistent  with  a  future  exercise  of  the  power; 
and  the  right  of  redemption  will  remain  in  the  persons  entitled  to  the  estate 
in  default  of  appointment.     Coote,  82. 


CH.  VII.]  POWER   OF   SALE.  127 

creditors.     Upon  the  general  subject,  Parker,  Ch.  J.,  remarks 
as  follows  :  —  "It  is  contended  by  the  plaintiff,  that  this  power 
to  sell  so  alters  the  character  of  the  conveyance,  as  to  deprive 
it  of  the  qualities  of  a  mortgage,  or  else  superadds  qualities 
which  enlarge  the  estate  in  Whiting,  so  as  to  render  it  sub- 
ject to  his  debts  by  attachment  and  levy.     We  have  not  seen 
any  authorities  which  will  justify  us  in  adopting  this  opinion  ; 
on  the  contrary,  all  the  authorities  cited  have  a  tendency  to 
show,  if  they  do  not  distinctly  decide,  that  where  the  trans- 
action between  the  parties  to  the  conveyance  is  in  truth  and 
in  fact  a  security  for  debt  or  loan,  it  shall  have  all  the  attri- 
butes   of    a   mortgage,  notwithstanding    there   may  be    an 
unlimited  power  to  sell.  Conveyances  of  this  kind  are  invari- 
ably thus  treated  in  chancery,  and  even  when  the  parties  have 
attempted  in  that  form  of  conveyance  to  deprive  it  of  the 
character  of  a  mortgage,  still  if  it  appear  to  have  been  a 
security  for  debt,  the  Court  will  let  the  debtor  in  to  redeem. 
So  if  there  be  a  limited  period  within  which  the  mortgagor 
shall  redeem,  as  during  his  life,  his  heir  shall  nevertheless  be 
allowed  to  redeem,  (Howard  v.  Harris,  1  Vern.  192.)     And 
if  there  be  an  agreement  to  make  the  conveyance  absolute 
upon  payment  by  the  mortgagee  of  a  further  sum,  if  the 
money  lent  be  not  paid  at  the  day  appointed,  yet  the  mort- 
gagor may  redeem  in  spite  of  this  agreement.     For  where 
the  real  transaction  is  security  for  a  loan,  the  law  deems  aU 
restrictions  upon  the  right  to  redeem,  unconscionable  advan- 
tages taken  by  the  creditor  of  the  necessities  of  the  debtor. 
(Manlove  v.  Bale,  2  Vern.  84  ;  Co.  Lit.  203,  Butler's  note, 
96.)     An  instrument  of  conveyance,  therefore,  which  appears 
on  the  face  of  it,  or  by  contemporaneous  instruments,  to  be 
intended  as  security  for  the  payment  of  a  debt,  or  the  per- 
formance of  other  conditions,  does  not  lose  this  character 
while  the  estate  remains  in  the  hands  of  the  grantee,  although 
he  may  have  power  to  convey  the  estate  free  from  such  in- 
cumbrance.    A  power  to  seU,  executed  to  one  who  relies  upon 
such  power,  and  expects  and  intends  to  purchase  an  absolute 


128  THE   LAW   OF  MORTGAGES.  [CH.  VII. 

estate,  will  without  doubt  pass  an  unconditional  estate  to  the 
purchaser,  though  this  form  of  conveyance  is  rare  in  this 
country.  But  while  the  power  remains  unexecuted,  the  rela- 
tion of  mortgagor  and  mortgagee  subsists,  if  that  was  the 
relation  created  by  the  instrument  separate  from  the  power ; 
but  even  under  such  a  power,  it  has  been  held  in  England, 
that  if  the  purchaser  knows  the  original  nature  of  the  trans- 
action, and  appears  not  to  have  purchased  wholly  without 
reference  to  the  conditional  character  of  the  title,  he  will  be 
compelled  in  equity  to  surrender  it,  on  receiving  the  money 
he  has  advanced.  (See  Croft  v.  Powel,  2  Com.  603.)  A 
power  in  the  mortgagee  to  sell,  unexecuted,  leaves  the  estate 
as  it  would  be  if  no  such  power  existed.  The  right  of  re- 
detnption,  which  is  the  true  indicium  of  a  mortgage,  remains 
in  the  mortgagor  and  his  representatives,  until  it  shall  be  fore- 
closed by  entry  or  judgment,  with  possession  as  prescribed  by 
law,  or  until,  availing  himself  of  his  power,  the  mortgagee 
shall  have  made  a  conveyance  pursuant  to  it,  to  some  one 
who  shall  intend  to  purchase  an  irredeemable  estate." 

16  a.  So  a  power  of  sale  does  not  change  the  redeemable 
character  of  a  mortgage.^  So  a  mortgage  may  be  foreclosed 
in  chancery,  notwithstanding  a  power  of  sale.^    • 

16  b.  A  power  of  sale  is  irrevocable,  and  does  not  cease 
with  the  death  of  the  mortgagor.^ 

16  c.  Where  a  sale  which  passed  no  title  was  m^de  under 
a  power;  held,  an  assignment  of  the  mortgage  debt,  to  the 
amount  of  the  purchase-money.^ 

16  d.  In  Mississippi,  it  is  held  that  a  power  of  sale  cannot 
be  executed  but  through  a  court  of  equity.^ 

16  e.  In  Van  Bergen  v.  Demarest,*^  a  sale  under  a  power 
was  restrained,  upon  a  bill  by  the  minor  heir  of  the  mort- 
gagor, and  the  sale  conducted  by  the  master,  after  an  in- 
quiry as  to  the  amount  due. 


1  Turner  v.  Bouchcll,  3  Ilarr.  &  J.  09.         *  Crosvcnor  v.  Day,  1  Clark,  109. 
-  Carradim;  v.  O'Connor,  21  Ala.  .OT.'J.         ''  Ford  r.  Russell,  1  Erceni.  Ch.  42. 
■^  liergcn  v-  Bennett,  1  Cai.  Cas.  Err.  1.         ''4  Johns.  Cli.  37. 


CH.  VII.]  POWER   OF   SALE.  129 

16/.  A.  surrendered  an  equity  of  redemption,  being  igno- 
rant that  the  mortgage,  under  which  the  vendor  represented 
the  land  to  be,  contained  a  power  of  sale  after  one  year's 
failure  to  pay,  and  the  mortgage  not  being  on  record.  A. 
filed  his  bill  for  an  injunction  against  the  mortgagees,  alleg- 
ing a  sale  by  such  ignorance,  and  that  the  mortgage  was 
fraudulent ;  but  the  fraud,  and  all  intent  to  mislead,  was  denied 
in  the  answer.  A  temporary  injunction  was  granted,  to  allow 
A.  time  to  raise  money  and  redeem.^ 

17.  Various  causes  are  sufficient  to  invalidate  the  summary 
proceeding  of  selling  under  a  power. 

17  a.  No  title  passes,  unless  the  essential  requisites  of  the 
power  are  complied  with.^ 

17  b.  K  the  power  authorizes  a  sale  of  the  whole  land,  or 
such  part  as  may  suffice  to  discharge  the  instalments  then 
due,  a  sale  for  instalments  due  and  to  become  due  is  void.^ 

18.  In  the  case  of  the  Middlesex  Bank  v.  Minot,^  it  was 
held,  that  where  shares  in  a  bank  were  sold  at  public  auction, 
under  a  power  of  sale  contained  in  a  mortgage,  and  the  mort- 
gagees themselves  became  the  purchasers  ;  the  sale  was  void. 
In  Texas,  in  the  absence  of  fraud  or  unfairness,  the  mortgagee 
may  purchase,  directly  or  through  another  person.^ 

19.  Upon  a  bill  in  equity,  to  enforce  performance  of  a  pur- 
chase made  by  the  defendant  of  a  mortgaged  estate,  sold  by 
the  plaintiff  under  a  power  in  the  mortgage,  which  power  was 
to  arise  upon  default  made  in  paying  the  instalments  of  the 
debt ;  it  was  held,  that  the  unsupported  declaration  of  the 
plaintiff,  an  interested  party,  was  not  sufficient  proof  that  the 
event  had  happened,  on  which  the  right  of  exercising  the 
power  of  sale  was  to  arise.^ 

20.  Mortgage,  payable  by  instalments,  with  a  power  of 
sale,  upon  non-payment  of  any  instalment  of  principal  or 

1  Piatt  V.  McClure,  3  W.  &  M.  151.  ^  Howard  v.  Davis,  6  Tex.  174. 

^  Ormsbv  i'.  Tarascon,  3  Litt.  404.  ^  Hobson  v.  Bell,  2  Bcav.  22. 

3  Ibid. 

*  4  Met.  325.    See  Hyndman  v.  Hynd- 
man,  19  Verm.  9. 


130  THE   LAW   OF  MOKTGAGES.  [CH.  VII. 

interest  for  thirty  days  after  it  fell  due  ;  the  surplus  proceeds 
to  be  paid  to  the  mortgagor,  after  deducting  interest  and  costs, 
and  the  whole  mortgage  debt.  Held,  this  provision  was  only 
intended  to  authorize  a  statute  foreclosure,  upon  non-payment 
of  the  instalments  within  the  time  fixed,  with  a  right  to  retain 
for  the  whole  debt,  if  the  instalment  and  costs  were  not  paid 
before  the  sale  ;  but  did  not  make  the  whole  debt  due  and 
payable  by  a  mere  neglect  to  pay  the  instalment  within  the 
time  prescribed.! 

21.  Where  a  power  in  a  mortgage  authorized  a  sale  of  the 
whole  or  such  part  as  might  be  sufficient  to  discharge  the 
instalments  then  due,  a  sale  for  the  instalments  then  due,  and 
one  not  due,  was  held  to  be  void.^ 

22.  A  power  of  sale  is  extinguished  by  payment  of  the 
mortgage,  even  as  against  a  bond  fide  purchaser.^  The  Court 
say  :  4  —  "  There  must  be  a  power.  Payment  extinguishes 
it;  and  the  case  becomes  the  same  as  if  none  had  ever  been 
inserted  in  the  mortgage."(e) 

23.  Where  a  subsequent  mortgagee  has  tendered  the 
amount  of  debt  and  costs  due  upon  a  prior  mortgage,  a  sale 
under  a  power  in  such  mortgage  is  void;^ 

24.  After  the  debt  became  due,  the  mortgagee,  under  a 
power  of  sale,  sold  a  part  of  the  property  for  enough  to  pay 
the  debt  and  expenses.  Held,  his  title  to  the  property  was 
thereby  extinguished,  and  he  could  not  legally  sell  the 
remaining  part.*^ 

25.  Where  a  sale  was  made  under  a  power,  and  the  adver- 
tisement stated  that  there  were  three  mortgages,  when  in  fact 
there  were  but  two  ;  the  sale  was  held  void.     So  where  no 


1  Ilol.lcn  v.  Gilbert,  7  Paifjo,  208.  »  Il)id.  276. 

-  Oiirisby  v.  Turascon,  .3  l.itt.  410.         '•'  IJurnet  (».  Denniston,  5  Johns.  Ch.35. 

^  Cameron  v.  Irwin,  .5  Hill,  272.  ''  Charter  v.  Stevens,  3  Dcnio,  33. 


(e)  So  in  Wood  v.  Colvin,  (2  Hill,  5GG,)  it  was  held,  that  payment  of  a 
judgment  extinguished  the  power  to  sell  under  it. 


CH.  VII.]  POWER   OF   SALE.  131 

place  was  named,  and  the  mortgagor  was  under  twenty-five 
years  of  ageJ 

26.  Where  a  mortgage  contains  a  power  of  sale,  and,  in 
consequence  of  the  sale  not  being  made  bond  fide ^  the  proceeds 
are  insufficient  to  pay  the  debt,  no  action  can  be  maintained 
for  the  balance  of  such  debt.^  (/) 

1  Burnet  v.  Dennistoii,  5  Johns.  Ch.  35.         "  Howard  v.  Ames,  3  Met.  308. 


(/)  This  subject  has  in  some  of  the  States  been  regulated  by  statute.  In 
Massachusetts,  (Sts.  1854,  ch.  377,)  where  a  mortgage  contains  a  power  of 
sale,  and  a  conditional  judgment  is  rendered,  the  demandant,  instead  of  a 
writ  of  possession,  may  have  a  decree  for  sale  under  the  power,  giving  such 
notices  as  are  required  by  the  deed  or  the  Court.  If  the  mortgagor  was  un- 
married when  the  deed  was  made,  or  his  wife  released  dower,  the  sale  bars 
dower.  In  Mississippi,  the  mortgagee  cannot  sell  without  six  months'  notice. 
Miss.  St.  1840,  28,  29;  Hutch.  QWL  In  Michigan,  where  he  has  a  suit  pend- 
ing. Mich.  Rev.  Sts.  499.  In  the  same  State,  and  in  New  York,  the  mort- 
gagee is  authorized  to  purchase  the  estate  himself,  if  it  be  done  fairly.  lb. 
2  N.  Y.  Rev.  Sts.  546,  St.  1842,  ch.  277,  §  8.  In  New  York,  the  affidavit  of 
sale,  without  deed,  will  perfect  his  title.  The  power  must  be  registered  or 
recorded,  and  the  sale  has  the  effect  of  a  foreclosure,  as  to  the  mortgagor, 
and  all  claimants  subsequent  to  the  mortgagee.  lb.  The  statutes  of  Maine 
and  Maryland  contain  similar  provisions.  Maine,  St.  1838,  ch.  333.  The 
seller  shall,  within  ten  days  from  the  sale,  file  a  report  of  his  doings  under 
oath  with  the  clerk,  and  the  Court  may  affirm  them  or  set  them  aside,  and 
oi-der  a  resale.  Any  one  interested  may  intervene  or  be  summoned  and 
heard,  and  the  confirmation  of  the  sale  shall  bind  every  one.  If  the  tenant 
is  not  sole  owner  in  fee,  no  sale  shall  be  ordered  till  all  parties  interested 
are  summoned  in.  In  Wisconsin,  the  power  to  lease  of  a  tenant  for  life,  or 
the  power  of  a  married  woman,  is  not  extinguished  or  suspended  by  mort- 
gage, but  the  power  and  the  land  are  bound  thereby.  A  power  of  sale  vests 
in  an  assignee  of  the  mortgage.  Wis.  Rev.  Sts.  326.  In  the  State  of  New 
York,  the  whole  subject  of  powers  has  been  precisely  regulated  by  minute 
statutory  provisions.  Many  of  these  relate  particularly  to  the  power  of  sale 
in  moi'tgages ;  and  various  points  have  been  decided  by  the  courts,  which 
are  rather  of  local  than  general  application.  In  an  early  case,  (Bergen  v. 
Bennett,  1  Caines's  Cas.  in  Err.  1,)  a  mortgage  was  foreclosed  under  a 
power  of  sale,  and  after  sixteen  years'  acquiescence,  knowing  the  sale,  the 
mortgagor  was  denied  the  right  of  redeeming. 

A  power  of  attorney  to  execute  a  mortgage  authorizes  the  attorney  to  in- 


132  THE   LAW   OF  MORTGAGES.  [CH.  VII. 

sert  a  power  of  sale,  on  default  of  payment.     Wilson  v.  Troup,  2  Cow. 
195. 

This  does  not  change  the  nature  of  the  instrument,  or  increase  the  secu- 
rity beyond  Avhat  is  implied  in  the  word  "  mortgage."     lb. 

A  power  to  give  a  mortgage  means  the  instrument  commonly  used  as  such, 
in  the  place  where  the  power  is  to  be  executed.     lb. 

In  New  York,  mortgages  generally  contain  a  power  of  sale  or  summary 
foreclosure ;  and  a  power  by  a  citizen  of  Pennsylvania  to  execute  a  mort- 
gage in  New  York  implies  authority  to  insert  such  power.     lb. 

The  provision  of  the  Revised  Laws,  (p.  374,)  that  before  execution  of  a 
conveyance  under  a  power  of  sale,  such  power  shall  be  recorded,  is  for  the 
benefit  of  the  purchaser ;  and  designed  to  protect  him  against  subsequent 
purchasers,  &c.  But  the  mortgagor  cannot  object  the  want  of  such  regis- 
tration,    lb. 

It  is  not  necessary  to  the  validity  of  a  mortgage  or  a  purchase  under  a 
power  of  sale  therein,  even  as  against  subsequent  purchasers,  &c.,  that  the 
power  to  execute  it  be  registered  according  to  the  statute.  1  R.  L.  273, 
§2.     lb. 

If  a  mortgagee  convey  part  of  the  mortgaged  premises  with  warranty,  and 
afterwards  himself  purchase  the  whole  urrerer  the  power  of  sale  ;  the  purchase 
will  enure  to  the  benefit  of  his  grantee.     lb. 

A  general  assignment  divests  the  mortgagee's  interest  so  efiectually,  that 
a  foreclosure  by  the  assignee  is  valid  as  against  the  mortgagee  without  using 
his  name,  giving  him  notice,  or  in  any  way  recognizing  his  connection  with 
the  mortgage. 

A  sale  under  a  power,  pursuant  to  the  statute,  is  equivalent  between  the 
parties  to  it  to  a  sale  under  a  decree  of  chancery.  The  mortgagees  (1  R.  L. 
375,  §  10,)  are  entitled  to  become  purchasers  at  such  sale,  and  as  between 
them  and  the  mortgagor,  the  estate  passes  upon  such  pui-chase,  without  the 
execution  of  any  deed  of  conveyance.  Slee  v.  Manhattan,  &c.  1  Paige,  52; 
Bergen  t'.  Bennett,  1  Gaines's  Gas.  in  Err.  1;  7  Johns.  Gh.  144  ;  10  Johns. 
185  ;  4  Gow.  266. 

Where  there  was  a  conveyance  in  trust,  with  a  power  of  sale,  and  at 
the  same  time  a  conveyance  to  the  same  grantee  of  other  land  in  trust  for 
another  cestui,  with  a  similar  power,  and  the  grantee  mortgaged  back  the 
whole  to  secure  the  unpaid  part  of  the  purchasc-imoney  of  both  parcels  ;  the 
mortgage  was  held  valid.     Coutant  v.  Servoss,  3  Barb.  128. 

In  New  York,  a  power  of  sale  in  a  mortgage,  so  far  as  it  relates  to  the 
equity  of  redemption,  or  the  surplus  value  of  the  property  over  the  debt,  is 
a  power  in  trust;  and  any  collusive  agreement  by  the  mortgagee  with  a 
third  person,  to  execute  the  power  in  such  manner  as  to  deprive  the  owner 
of  the  equity  of  the  benefit  intended  for  him,  by  the  statute,  respecting  a 
notice  of  the  sale,  or  by  which  he  may  be  deprived  of  the  benefit  of  a  fair 


CH.  VII.]  POWER  OF   SALE.  133 

competition  at  the  sale,  is  a  fraud  upon  his  rights  ;  and  in  case  of  such  an 
agreement  for  the  purpose  of  enabling  the  third  person  to  obtain  the  estate 
for  less  than  its  value,  and  to  defraud  the  owners  of  the  equity,  the  sale  Avill 
be  set  aside  upon  a  bill  filed  in  chancery.  Jencks  v.  Alexander,  11  Paige, 
619. 

A  power  of  sale,  is  a  power  coupled  with  an  interest,  and,  it  seems,  a 
power  appendant.  It  passes  with  an  assignment  of  the  mortgage,  but  not  by 
a  conveyance  of  part  of  the  estate.     lb. 

Under  the  Revised  Statutes,  as  amended  in  1844,  there  are  three  things 
necessary  to  a  valid  sale  under  a  power.  The  notice  of  sale  must  be  pub- 
lished for  a  specified  time  in  a  specified  newspaper ;  a  copy  of  such  notice 
must  be  affixed  in  a  specified  place  a  certain  period  before  the  time  of  sale ; 
and  a  copy  must  be  served  on  the  mortgagor  or  his  personal  representatives, 
&c.,  at  least  fourteen  days  before  the _ time  of  sale.  Harris,  J.  King  v. 
Duntz,  11  Barb.  191. 

Where  a  mortgage  is  executed  by  husband  and  wife,  and  the  wife  sur- 
vives the  husband,  she  is  entitled  to  notice  of  sale ;  otherwise  she  is  not 
barred  ;  and  the  heirs  of  the  husband  may  take  the  objection.     lb. 

In  case  of  the  death  of  the  mortgagor,  notice  need  not  be  served  upon  his 
heirs.    lb. 


VOL.    I.  12 


134 


THE   LAW    OF   MORTGAGES. 


[CH.  VIII. 


CHAPTER  VIII. 


NATURE   OF   THE   TITLE   AND   ESTATE    OP   THE   MORTGAGOR. 


1.  The  mortgagor  remains  the  real 
owner,  till  breach  o/  condition,  entry  of 
tlie  mortgagee,  or  foreclosure. 

2.  Remarlcs  of  judges  and  elementary 
writers  upon  this  subject. 

10.  (iualifications  of  the  general  rule  ; 
how  fur  tiie  mortgagee  may  be  called 
oicner. 

19.  A  mortgage  is  not  an  alienation 
of  the  land,  or  revocation  of  a  devise. 


24.  Mortgagor  may  maintain  a  real 
action,  as  owner. 

2.5.  And  gains  a  settlement,  and  other 
civil  jirivileges. 

29.  His  possession  is  not  adverse. 

33.  Tiic  mortgagee,  in  general,  has 
the  right  of  immediate  possession. 

37.  Wlien  he  has  not  this  right ; 
agreement  for  the  possession  of  the 
mortgagor,  how  proved ;  when  implied  ; 
mortgages  for  support,  &c. 


1.  It  has  been  stated,  that  after  breach  of  the  condition  of 
a  mortgage,  the  mortgagor  ceases,  at  law,  to  have  any  in- 
terest in  the  estate,  his  only  remaining  title  being  that  which 
is  recognized  in  a  court  of  equity  alone,  and  therefore  styled 
an  equity  of  redemption,  (a)  It  now  becomes  necessary, 
however,  to  remark  further  upon  this  subject,  that  only  as 
between  the  parties  to  the  transaction,  do  these  results  follow 
from  a  breach  of  the  condition  of  a  mortgage.     It  is  the  well- 


(a)  Blackstone  says:  —  "The  payment  of  principal,  interest,  and  costs 
ought,  at  any  time,  before  judgment  executed,  to  have  saved  the  forfeiture 
in  a  court  of  law,  as  Avell  as  in  a  court  of  equity.  And  the  inconvenience, 
as  well  as  injustice,  of  putting  different  constructions  in  diflerent  courts 
upon  one  and  the  same  transaction,  obliged  tlie  parliament  at  length  to 
interfere,  and  to  direct  by  the  statutes  4  &  5  Anne,  ch.  1(3,  and  7  Geo.  2, 
ch.  20,  that,  in  the  cases  of  bonds  and  mortgages,  what  had  long  been  the 
practice  of  the  courts  of  equity,  should  also  for  the  future  be  followed  in  the 
courts  of  law."  3  Bl.  Comm.  4.35.  It  is  said,  (King  v.  Edington,  1  E.  288,) 
though  after  breach  of  condition  the  estate  of  the  mortgagee  became  abso- 
lute at  law,  "  neither  courts  of  law  nor  equity  lost  sight  of  Avhat  the  parties 
intended."  It  has  been  held,  that  a  mortgage,  in  South  Carolina,  does  not 
convey  the  legal  title,  and  the  fee  remains  in  the  mortgagor,  even  after  con- 
dition Ijroken.  Thayer  v.  Cramer,  1  McC,  Ch.  395.  But  see  Stoncy  v. 
Shultz,  ]  IIill,  Ch.  4C4.     Sec  also  Evertson  v.  Sutton,  5  Wend.  295. 


CH.  Ylir.]        ESTATE  OF  THE  MORTGAGOR.  135 

settled  modern  doctrine,  that  except  so  far  as  the  relative 
rights  and  duties  of  mortgagor  and  mortgagee  between  them- 
selves are  concerned,  or  in  reference  to  all  strangers  or  third 
persons,  who  may  be  connected  with  or  interested  in  the 
mortgaged  estate ;  until  the  mortgagee  enters  for  breach  of 
condition, (Z>)  and  in  many  respects  until  final  foreclosure  of 


(h)  The  mortgagor  is  owner,  before  foreclosure  or  enlr>/  by  the  mortgagee. 
Perkins  v.  Dibble,  10  Ohio,  438;  Miami,  &e.  v.  Bank,  &e.,  Wright,  249; 
Ralston  v.  Hughes,  13  111.469.  See  Norwich  r.  Hubbard,  22  Conn.  587. 
In  New  Hampshire  it  has  been  said,  that  the  mortgagee  might  be  entitled 
to  notice  of  the  laying  out  of  a  highway,  and  damages,  as  oicner,  ly  formal 
entry  and  notice  of  his  title ;  and  in  any  event  might  have  his  rights  pro- 
tected in  chancery.  Parish  v.  Gilmanton,  11  X.  H.  298.  See  Mass.  Sts, 
1855,  ch.  247  ;  Christophers  v.  Sparke,  2  Jac.  &  W.  235.  The  mortgagee 
of  land  taken  for  a  railroad  need  not  be  made  a  party  to  proceedings  by 
the  mortgagor  for  the  assessment  of  damages,  provided  he  gives  his  assent 
thereto  by  a  writing  filed  in  the  case.  Meacham  i\  Fitchbui-g,  &c.,  4  Cush. 
291.  The  charter  of  a  city  provided,  that  the  common  council  might  order 
the  proprietor  or  proprietors  of  laiid  and  buildings  fronting  side-walks  or 
gutters,  to  level,  raise,  or  form  them  at  their  own  e.xpense,  prescribins;  a  rea- 
sonable time  therefor  ;  and,  if  they  failed  to  do  it,  might  themselves  procure 
it  to  be  done,  and  the  expeftse  thereof  should  then  be  a  lien  or  real  incum- 
brance on  the  property,  and  payment  enforced,  as  upon  a  mortgage  to  the 
city.  The  council  ordered  certain  works  of  this  nature  to  be  done  opposite 
premises  -which  were  mortgaged,  notifying  the  mortgagor,  but  not  the  mort- 
gagee. Upon  failure  to  do  the  work,  the  council  caused  it  to  be  done,  and 
the  expense  ^ras  ordered  to  be  paid  by  the  mortgagor.  Upon  his  neglect  or 
refusal  to  pay  it,  the  city  files  a  bill  in  equity  against  moitgagor  and  mort- 
gagee to  enforce  the  lien.  Held,  the  latter  was  liable  to  be  foreclosed. 
Norwich  v.  Hubbard,  22  Conn.  587.  Bill  to  charge  an  estate  with  debts, 
and  compel  a  conveyance  of  it.  Held,  mortgagees  of  the  estate  were  neces- 
sary parties.    Hoxic  r.  Carr,  1  Sumn.  173. 

In  addition  to  the  two  successive  stages  of  title  which  grow  out  of  a  mort- 
gage, arising  from  breach  of  condition  and  entry  by  the  mortgagee  ;  there  is, 
preliminary  to  either,  the  interest  of  the  mortgagor,  created  by  the  mere 
making  of  the  mortgage,  j^rior  to  condition  hrolen.  This  of  course  would 
seem  to  be  a  higher  and  more  substantial  title  than  cither  of  the  others ; 
constituting,  at  law,  what  they  constitute  in  equity.  But,  upon  mere  tech- 
nical principles,  relating  to  conditions,  a  different  doctrine  has  been  some- 
times propounded ;  although,  in  the  present  advanced  state  of  the  law  of 


136  THE   LAW   OP   MORTGAGES.  [CH.  VIII. 

the  mortgage,  the  mortgagor  remains  owner  of  the  estate  and 
seized  of  it,  while  the  mortgagee  is  held  to  have  a  mere  lien  or 
secm'ity.  In  terms,  the  condition  of  a  mortgage  is  subsequent, 
enabling  the  mortgagor  to  regain  a  title  which  has  once  passed 
from  him,  by  doing  a  certain  act ;  but  in  effect  it  i?> precedent, 
enabling  the  mortgagee  to  turn  into  a  legal  title  that  which 
was  before  a  mere  claim  or  lien,  upon  the  mortgagor's  failure 
to  do  a  certain  act.^ 

2.  These  general  principles  have  been  sanctioned  in  nu- 
merous American  and  English  cases.  They  are  thus  stated 
by  Shaw,  Ch.  J.,  in  Ewer  v.  Hobbs.-(c) 

1  See  Att.  Gen.  v.  Winstanlcy,  5  Bli.oli,         -  5  Met.  3  ;  Miami,  &c.  v.  Bank,  &c., 
(New,)  141;  White  t'.  Whitney,  3  Met.     Wright,    249;    Davis    v.   Anderson,    1 
84;  Goodwin  v.  Richardson,  11  Mass.     Kelly,  (Georgia,)  176. 
474,  475  ;  8  Ibid.  554,  Heading  of  Judge 
Trowbridge  ;    Hooper   v.    Wilson,    12 
Verm.  G95. 


mortgages,  it  would  not  probably  be  now  sanctioned  by  any  court  of  law  or 
equity.  In  Lord  Mountjoy's  case,  Anders.  307  ;  ace.  Moore  v.  Plymouth, 
3  B.  &  A.  GO,  it  was  lield,  that  a  mortgagor  cannot  effectually  make  a  reser- 
vation to  himself,  from  a  conveyance  to  a  purchaser,  of  any  privilege  from 
the  land,  as,  for  instance,  that  of  mining  or  hunting;  because  he  is  not  the 
legal  owner.  So  it  is  said:  —  "  A  mortgagor,  before  condition  broken,  has 
not  any  equity  of  redemption  —  nor  —  any  estate,  as  distinguished  from  a 
mere  tenancy,  either  at  law  or  in  equity  ;  clearly  not  at  law,  for  by  the 
mortgage  deed  he  has  conveyed  away  all  his  estate,  &c.,  both  at  law  and  in 
equity  to  the  mortgagee  ;  on  a  condition,  it  is  true,  but  that  a  condition,  the 
performance  or  breach  of  Avhich  a  court  of  etpiity  cannot  notice,  except  as 
it  leads  to  consequences  injurious  to  one  or  both  of  the  parties ;  nor  in 
equity,  for  a  court  of  equity  does  not  interfere  till  after  the  breach  of  the 
condition."  1  Pow.  2G8,  n.  The  same  author  remarks,  that  if  a  mortgagor 
before  the  condition  broken  devise  it,  the  devise  will  be  void  ;  for  a  con- 
dition is  not  devisable.  But  the  cases  of  Moor  &  al.  v.  Hawkins,  and  Row 
V.  Jones,  whicli  seem  to  have  on  solid  grounds  established  the  power  of 
testamentary  dispositions  of  possibilities,  accompanied  with  an  interest,  and 
of  such  as  would  be  descendible  to  the  heir  of  the  object  of  them,  dying 
before  the  contingent  event  —  appear  to  be  equally  applicable  in  principle 
to  the  case  of  a  condition  upon  a  mortgage.     1  Pow.  2G8. 

(r j  '•  AlllioMgli,  as  between  mortgagor  and  mortgagee,  it  is  a  transmission 
of  the  ice,  which  gives  the  mortgagee  a  remedy  in  the  form  of  a  real  action, 


CH.  VIII.]        ESTATE  OF  THE  MORTGAGOR.  137 

"  The  first  great  object  of  a  mortgage  is,  in  the  form  of  a 
conveyance  in  fee,  to  give  to  the  mortgagee  an  eHectual 
security,  by  the  pledge  or  hypothecation  of  real  estate,  for  the 
payment  of  a  debt,  or  the  performance  of  some  other  obliga- 
tion. The  next  is,  to  leave  to  the  mortgagor,  and  to  purcha- 
sers, creditors,  and  all  others  claiming  derivatively  through 
him,  the  full  and  entire  control,  disposition,  and  ownership 
of  the  estate,  subject  only  to  the  first  purpose,  that  of  securing 
the  mortgagee.  Hence  it  is,  that  as  between  mortgagor  and 
mortgagee,  the  mortgage  is  to  be  regarded  as  a  conveyance 
in  fee ;  because  that  construction  best  secures  him  in  his 
remedy,  and  his  ultimate  right  to  the  estate,  and  to  its  inci- 
dents, the  rents  and  profits.  But  in  all  other  respects,  until 
foreclosure,  when  the  mortgagee  becomes  the  absolute  owner, 
the  mortgage  is  deemed  to  be  a  lien  or  charge,  subject  to 
which  the  estate  may  be  conveyed,  attached,  and  in  other 
respects  dealt  with,  as  the  estate  of  the  mortgagor.  And  all 
the  statutes  upon  the  subject  are  to  be  so  construed  ;  and  all 
rules  of  law,  whether  administered  in  law  or  in  equity,  are  to 
be  so  applied,  as  to  carry  these  objects  into  effect." 

3.  So  it  is  said,  "  while  the  mortgagor,  or  any  persons  un- 
der him,  are  by  the  mortgagees  permitted  to  remain  in  posses- 
sion, and  the  mortgagees  omit  to  enter,  the  mortgagor  and 
those  who  are  in  under  him  are,  in  contemplation  of  law, 
taking  the  rents  and  profits  to  his  and  their  own  account."  ^ 
The  mortgagee  is  not  accountable  to  the  mortgagor  for  rents, 
before  taking  possession,  nor  the  mortgagor  to  the  mortgagee.^ 
So  the  mortgagor  in  possession  may  make  any  improvements 

1  Per  Putnam,  J.,  Mayo  r.  Fletcher,         2  chase  v.  Palmer,  25  Maine,  341. 
14  Pick.  531 ;  Clarke  v.  Curtis,  1  Gratt.     See  Davenport  v.  Bartlett,  9  Ala.  179. 
289.    See  Cadwallader  v.  Mason,  Wvtlie, 
58 ;  Graves  v.  Sayre,  5  B.  iMonr.  390. 


and  constitutes  a  legal  seizin";  yet,  to  most  other  purposes,  a  mortgage  before 
the  entry  of  the  mortgagee  is  but  a  pledge  and  real  lien,  leaving  the  mort- 
gagor to  most  purposes  the  owner."  Per  Shaw,  C.  J.,  Howard  v.  Robinson, 
5  Cush.  123. 

12* 


138  THE   LAW   OF  MORTGAGES.  [CH.  VIII. 

upon  the  estate,  and  the  mortgagee's  failing  to  object  will 
not  affect  his  rights.^ 

4.  Property  in  lease  being  mortgaged,  and  the  mortgagor 
becoming  bankrupt,  the  mortgagee  notified  the  tenant  to  pay- 
rent  to  him,  but  it  was  paid  to  the  assignees.  The  mort- 
gagee then  filed  a  petition,  that  the  assignees  might  be  ordered 
to  pay  him  the  rent  received.  In  dismissing  the  petition, 
Lord  Eldon  remarked,  that  admitting  the  case  of  Moss  v. 
Gallimore  to  be  sound  law,  he  had  often  been  surprised  by 
the  statement,  that  the  mortgagor  was  receiving  the  rents  for 
the  mortgagee.  A  mortgagee  never  could  in  that  court  make 
the  mortgagor  account  for  the  rent  for  the  time  past.  There 
was  no  instance  that  a  mortgagee  per  directum  had  called  on 
the  mortgagor  to  account  for  the  rents.  The  consequence  is, 
that  the  mortgagor  does  not  receive  the  rent  for  the  mort- 
gagee.2 

5.  So  Chief  Justice  Kent  remarks :  ^ — "  Mortgages  have  been 
principally  the  subject  of  equity  jurisdiction.  (fZ)  They  have 
been  considered  in  those  courts  in  their  true  nature  and  gen- 
uine meaning ;  and  the  rules  by  which  they  are  governed  are 
settled  upon  clear  and  consistent  principles.  The  case  is  far 
different  in  a  court  of  law ;  and  we  are  constantly  embar- 
rassed between  the  force  of  technical  formalities,  and  the 
real  sense  of  the  contract.  The  language,  however,  of  the 
modern  cases  is  tendinor  to  the  same  conclusions  which  have 
been  adopted  in  equity ;  and,  whenever  the  nature  of  the 
case  would  possibly  admit  of  it,  the  courts  of  law  have  in- 
clined to  look  upon  a  mortgage,  not  as  an  estate  in  fee,  but 
as  a  mere  security  for  a  debt.^^ 

6.  So,  Lord  Mansfield  remarks  in  the  King  v.  St.  Mi- 
chael's :  *  —  "  The  mortgagee,  notwithstanding  the  form,  has 

1  Ileatli  V.  Williams,  25  Maine,  209.  ^  Jackson  v.  Willard,  4  Johns.  42. 

2  Ex  parte  Wilson,  2  Ves.  &  B.  252.        *  1  Doug.  G32. 


{(V)  Courts  of  law  arc  said  to  be  molc-hlind  as  to  equities.    Peters  v.  Good- 
rich, 3  Conn.  155. 


en.  YIII.]  ESTATE    OF   THE   MORTGAGOR.  139 

but  a  chattel,  and  the  mortgage  is  only  a  security.  It  is  an 
af&ont  to  common  sense  to  say  the  mortgagor  is  not  the 
real  owner.".  "  A  mortgagor  has  a  right  to  the  possession, 
till  the  mortgagee  brings  an  ejectment." 

7.  Lord  Hardwicke  says :  ^  — "  The  interest  of  the  land  must 
be  somewhere,  and  cannot  be  in  abeyance,  but  it  is  not  in 
the  mortgagee,  and  therefore  must  remain  in  the  mortga- 
gor." 

8.  In  Cholmondeley  v.  Clinton,^  Sir  Thomas  Plumer,  M. 
H.,  says :  —  "  The  relation  bet\v^een  mortgagor  and  mortgagee  is 
perfectly  anomalous  and  sui  generis.  The  latter  acquires  a 
distinct  and  independent  beneficial  interest  in  the  estate  ;  he 
has  always  a  qualified  and  limited  right,  and  may  eventually 
acqune  an  absolute  and  permanent  one  to  take  possession, 
and  he  is  entitled  to  enforce  his  right  by  an  adverse  suit  in 
invitum  against  the  mortgagor." 

9.  So  Lord  Manners  remarks  r^  —  "  The  person  entitled  to 
the  equity  of  redemption  is,  in  equity,  considered  as  the 
owner  of  the  estate  ;  it  descends  to  his  heir,  may  be  the  sub- 
ject of  settlement  or  will,  may  be  limited  in  the  same  man- 
ner, and  those  limitations  barred  in  the  same  manner,  as 
those  of  the  legal  estate ;  the  mortgagee  being  but  a  mere 
incumbrancer." 

10.  Such  may  be  laid  down  as  the  existing,  settled  rule  of 
law  upon  tliis  subject.  It  should  be  stated,  however,  that  a 
different  language  is  not  unfrequently  held  in  the  books, 
with  respect  to  the  title  of  mortgaged  premises  ;  speaking  of 
the  mortgagee  as  the  true  owner,  more  especially,  where  he 
is  in  possession,*  and  of  the  mortgagor,  as  having  a  mere 
equity.  It  is  truly  said,  "  Unless  the  different  purposes  to 
be  answered  are  adverted  to,  there  would  appear  to  be  much 
confusion  in  the  books  relative  to  the  rights  of  the  mortga- 
gor and  mortgagee ;  and,  with  those  purposes  in  view,  an 
attempt  to  reconcile  all  the  decisions  would   be  made  in 

1  Casborne  v.  Scarfe,  1  Atk.  606.  ^  2  Ball  &  B.  402. 

2  2  Jac.  &  W.  183.  *  Lowell  v.  Shaw,  3  Shepl.  242. 


140  THE  LAW   OF  MORTGAGES.  [CH.  VIII. 

vain."  ^  So,  Judge  Story  remarks,  that  the  various  language 
used  upon  this  subject  is  to  be  accounted  for  by  the  different 
views  which  prevail  in  law  and  equity .^ 

11.  Thus,  in  Fay  v.  Brewer,^  it  is  said,  "  The  mortgagee 
has  the  whole  estate  against  all  but  the  mortgagor,"  w^hile, 
as  has  been  seen,  the  general  language  of  the  cases  is,  that 
the  mortgagor  "  has  the  whole  estate  against  all  but "  the 
mortgagee.  So,  in  Root  v.  Bancroft,^  it  is  said,  "  As  be- 
tween mortgagor  and  mortgagee,  the  execution  and  delivery 
of  the  mortgage  deed  transfer  the  legal  estate  and  vest  it  in 
the  mortgagee  ;  and  the  interest  of  the  mortgagor  is  a  right 
to  redeem."  So  it  is  said  by  the  Court  in  New  Hampshire, 
that  the  mortgagor  retains  only  a  power  to  regain  the  fee, 
and  that  the  condition  as  to  him,  (not  the  mortgagee)  is  a 
precedent  one,  he  being  a  mere  tenant  at  sufferance,  and 
having  no  right  of  possession.^  Also,  that  a  mortgagee  not 
in  possession  is  not  entitled  to  be  treated  as  owner,  except  in 
a  suit  or  some  other  proceeding  to  enforce  his  rights  as  mort- 
gagee.^ 

12.  Mr.  Powell  remarks  :  —  "  The  mortgagee  is  to  be  con- 
sidered, both  at  law  and  in  equity,  as  the  true  owner  as  to 
all  other  persons  than  the  mortgagor,  or  persons  who  can 
show  a  title  to  compel  a  redemption.  And  as  to  those  per- 
sons, the  mortgagee  is  to  be  considered  as  an  indifferent 
stakeholder,  the  mortgage  not  vesting  any  actual  ownership 
in  him,  and  the  estate  being  in  his  hands  as  a  mere  pledge."'' 
So,  Mr.  Coventry  says,^  "the  whole  legal  estate  is  in  the 
mortgagee." 

13.  In  the  case  of  Brown  v.  Cram,^  the  plaintiff  claimed 
under  a  mortgage,  and  the  defendant  under  a  subsequent, 
absolute  deed,  from  the  same  person ;  and  issue  was  joined 

1  Per  Parker,  C.  J.,  Smilli  v.  Moore,  tees,  &c.  v.  Dickson,  1  Freeni.  Ch. 
1 1  N.  H.  r)9.  474. 

'^  Ctray  v.  Jenks,  3  Mas.  521.  "  Great   Falls    Co.  v.   Worcester,  15 

2  .'i  Pick.  204.  N.  II.  412. 

■*  10  Met.  471.  "  1  Pow.  107,  n.,  3  Swan.  237. 

^  Prown  V.  Cram,  1  N.  II.  171.     Sec         **  1  J'ow.  177,  n. 
also  Haven  v.  Low,  2  N.  II.  IG;  Trus-         '•*  1  M.II.  1G9. 


CH.  VIII.]  ESTATE   OF  THE  MORTGAGOR.  141 

upon  the  question  of  freehold  title.  The  plaintiff  was 
proved  to  have  made  a  formal  entry,  and  subsequently,  to 
have  had  continued  possession.  The  entry  was  made  before 
one  of  the  notes  secured  by  the  mortgage  became  due,  and 
after  the  other  became  due.  Held,  the  freehold  title  was  in 
the  plaintiff,  as  much  as  if  he  had  received  an  absolute,  in- 
stead of  a  conditional  deed  ;  the  mortgagor  retaining  merely 
a  power  to  regain  the  fee  upon  performance  of  a  condition 
precedent. 

14.  In  the  same  case,  it  is  held,  that  the  purchaser  of  an 
equity  of  redemption  has  no  title  in  the  land  before  re- 
demption.^ 

15.  So,  in  Connecticut,  it  is  held,  that  the  legal  title  vests 
in  the  mortgagee.^ 

16.  And  in  New  Jersey,^  the  mortgagee  is  said  to  be 
seized  and  take  an  estate  in  prcesenti.  The  condition  is  sub- 
sequent. 

17.  So,  in  Ohio,  it  is  held  that  the  title  is  in  the  mortgagee 
after  breach  of  condition,  until  the  mortgage  be  satisfied.^ 

18.  And  in  Maryland  it  is  said,  "  Upon  the  execution  of 
the  mortgage,  the  legal  estate  becomes  immediately  vested 
in  the  mortgagee,  and  the  right  of  possession  follows  as  a 
consequence,  subject  only  to  the  occupancy  of  the  mortga- 
gor, which  is  only  tacitly  permitted  until  the  will  of  the 
mortgagee  is  determined."^ 

18  a.  In  Kentucky,  it  has  been  held,  that  the  mortgagor 
cannot  maintain  an  action  on  the  covenants  of  warranty  in 
the  deed  to  him,  while  the  mortgage  debt  remains  unpaid ; 
the  mortgagee  being  the  legal  owner.*^ 

18  b.  If  the  seller  of  land  take  back  a  mortgage  for  the 
price,  which  he  forecloses,  he  is  to  be  regarded  as  the  con- 
tinuous owner  in  reference  to  a  dedication  of  the  land  as  a 
highway.''' 

1  Brown  v.  Cram,  I  N.  H.  172.  '^  Jamieson  v.  Bruce,  6  Gill  &  J.  74. 

2  Chamberlain  y.  Thompson,  10  Conn.  ^  McGoodwin  v.  Stephenson,  11  B. 
251.  Mour.  21. 

3  Montgomery  i-.  Brnere,  1  Soutli.  2G8.        "  Wright  v.  Tukey,  3  Cush.  290. 
*  Heighway  v.  Pendleton,  1 5  Ohio,  733. 


142  THE    LAW   OF    MORTGAGES.  [CH.  VIII. 

18  c.  The  words  "  mortgage,  assign,  and  transfer,"  in  a 
deed,  pass  the  legal  title.^ 

18  d.  Where  land  is  devised,  subject  to  the  payment  of  an 
annuity,  and  mortgaged  by  the  devisee,  the  mortgagee  be- 
comes personally  liable  for  the  annuity  after  entering  to  fore- 
close. And  his  liability  continues  even  after  he  has  sold  the 
land.2 

19.  Upon  the  ground  that  the  mortgagor  is  the  real  owner 
of  the  land,  a  mortgage  was  early  held  not  to  be  such  an 
alienation  as  to  change  any  previous,  revocable  disposition  of 
the  property  ;  but  merely  to  prevent  the  owner  or  his  alienee 
from  recovering  it,  unless  they  discharged  the  demand  there- 
by secured. 

20.  Thus,  in  Thorne  v.  Thorne,'^  an  owner  in  fee  settled 
his  lands  by  voluntary  conveyance  to  the  use  of  himself  for 
life,  remainder  to  his  daughter  and  heir  apparent  in  tail,  re- 
mainder to  his  three  brothers  in  tail,  remainder  to  himself  in 
fee,  with  power  of  revocation.  Seven  years  afterwards,  he 
mortgaged  in  fee  to  one  of  the  three  brothers,  who  were  re- 
mainder-men, conditioned  that  if  he  or  his  heirs  paid  the 
money  at  the  day,  he  should  have  the  land  in  his  former 
estate.  The  mortgage  became  forfeited,  and  the  mortgagee 
afterwards  purchased  of  his  elder  brother,  the  heir  at  law. 
The  third  brother  brings  a  bill  for  the  third  part,  by  virtue  of 
the  limitation  of  the  remainder  in  tail  to  him  and  his  two 
brothers..  The  question  was,  whether  the  mortgage  was  a 
total  revocation,  or  only  pro  tanto.  Held,  the  revocation  was 
only  /TO  tanto^  because  the  mortgagor  was  to  have  the  lands, 
on  payment,  as  in  his  former  estate. 

21.  The  same  principle  is  adopted  in  regard  to  a  devise, 
followed  by  a  mortgage,  of  the  land.  Thus,  in  the  case  of 
Hall  V.  Dcnch,*  lands  were  devised  in  tail  male,  remainder  to 
the  plaintill"  in  fee,  and  afterwards  mortgaged  in  fee.  The 
devisor  having  died,  and  the  tenant  in  tail  having  also  died 

1  GrtDibril  ?).  Doc,  8  Blackr.  140.  •*  1   Vorn.  321);    Casbornc  v.  Scarfe, 

^Felch  V.  Taylor,  1.'3  Tick.  133.  1  Atk.  G()6 ;  McTa^gart  v.  Thompson, 

»  1  Vcrn.  141,  I8'.>.  2  llarr.  (renn.)  141). 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  143 

without  issue,  the  plaintiff  brought  a  bill,  claiming  under  the 
devise  to  him.  Held,  though  the  mortgage  was  a  total  revo- 
cation of  the  will  at  law,  it  was  not  so  in  equity,  but  the 
devisee  might  redeem. 

22.  So,  an  agreement  made  upon  the  sale  of  land,  that  the 
vendee  shall  not  sell  it  without  first  ofTering  it  to  the  vendor, 
does  not  preclude  the  vendee  from  mortgaging  the  land  to 
secure  a  debt,  without  making  such  offer.  And  an  absolute 
deed,  with  a  subsequent  defeasance,  executed  in  conformity 
with  an  agreement  made  at  the  time  of  giving  the  deed,  con- 
stitutes a  mortgage,  not  a  sale}  The  Court  say ,2  "  this  could 
not  be  intended  to  restrain  the  defendant  from  all  or  any  of 
the  uses  of  his  property,  incident  to  the  ownership,  except  on 
an  offer  to  the  plaintiff  before  a  sale  and  alienation.  It 
could  not  prevent  him  from  mortgaging  it  to  raise  money. 
This  being  a  security  for  money,  and  not  a  sale  or  alienation 
of  the  estate,  we  think  the  casus  foederis  had  not  occurred." 

22  a.  So,  where  there  is  a  mere  power  to  sell  lands,  a 
power  to  mortgage  will  not  be  implied.^  "Whether  a  trustee, 
appointed  by  will,  with  power  to  sell  and  dispose  of  lands  in 
fee-simple  or  otherwise,  may  mortgage  them,  queered 

22  b.  So,  the  act  of  Congress  of  1820,  ch.  52,  §  7,  pro- 
viding that  "  no  land  shall  be  purchased  on  account  of  the 
United  States,  except  under  a  law  authorizing  such  pur- 
chase," does  not  prohibit  the  acquisition,  by  the  United 
States,  of  the  legal  title  to  land,  taken  by  way  of  security  for 
a  debt,  either  directly  or  through  the  intervention  of  a  trus- 
tee.^ 

22  c.  So,  where  a  statute  provided,  that  notice  of  a  sale  to 
enforce  a  mechanic's, lien  should  be  given  to  the  owner  of  the 
land;  it  was  held,  that  a  mortgagee,  whose  title  accrued 
after  that  of  the  mechanic,  was  not  entitled  to  such  notice.^ 


1  Loverinfr  v.  FogfJi  18  Pick.  540.  '">  Neilson   v.  Lagow,  12  How.  U.  S. 

-  Ibid.  p.  .543.         '  98. 

■^  Albany,  &c.  r.  Bav,  4  Cotnst.  9.  "  Howard  v.  Robinson,  5  Cnsb.  119. 

••  Ibid.  " 


144  THE   LAW   OF  MORTGAGES.  [CH.  VIII. 

22  d.  But  a  mortgagee  is  a  purchaser^  to  the  extent  of  his 
interest  in  the  land,  within  the  Statute  of  Frauds.^ 

23.  So,  a  mortgage  of  property  insured  is  not  an  alienation 
by  sale  or  otherwise,  within  the  meaning  of  the  statute  rela- 
ting to  mutual  insurance  companies.^  [e) 

23  a.  Upon  similar  grounds,  a  right  of  way,  appurtenant 
to  land,  over  and  upon  adjoining  land,  is  not  extinguished 
by  the  vesting  of  both  estates  in  the  same  person,  as  mort- 
gagee, under  separate  mortgages,  till  both  are  foreclosed.^ 
To  effect  such  extinguishment,  it  is  held,  that  the  party 
must  have  a  permanent  and  enduring  title  to  both  estates, 
an  unlimited  power  of  disposal,  with  or  without  the  former 
incidents  of  servitude,  or  with  new  incidents  of  the  same 
kind ;  an  estate  not  liable  to  be  defeated  by  performance  of 
a  condition  or  an  event  beyond  his  control,  and  where  the 
estates  cannot  again  be  disjoined  by  operation  of  law.  "  So 
long  as  she  (the  mortgagee)  held  them,  they  were  both  de- 
feasible, upon  different  conditions,  —  the  payment  of  distinct 
debts,  and,  for  aught  that  appears,  to  be  performed  by 
different  persons,  because  the  rfespective  equities  of  redemp- 
tion might  be  held  by  different  persons.  So  long  as  she 
held  them,  one  might  have  been  redeemed  and  the  other 
foreclosed  without  any  act  of  hex's,  and  a  foreclosure  or  re- 
demption of  either,  would  have  entirely  effected  a  separation 
of  the  two."  The  Court  further  remark,  that  a  redemption 
reinstates  the  mortgagor  in  his  original  estate,  subject  to 

iLedyard  v.  Butter,  9  Paige,  132.  Pick.  418;    Rice    v.   Tower,    1    Gray, 

2  Conover  v.  The  Mutual,  &c.,  3  Denio,    426. 
254';  Jackson  v.  Mas.sachusetts,  &c.,  23         ^  Ritgcr  v.  Parker,  8  Cusli.  145. 


(e)  Insurance  upon  property  mortgaged,  the  company  agreeing  by  a 
memorandum  upon  the  policy  to  pay  the  amount  insured  to  the  mortgagee 
■with  the  consent  of  the  mortgagor.  The  mortgage  was  afterwards  lore- 
closed,  without  any  act  of  the  mortgagor,  to  whom  the  poUcy  was  issued. 
Ilehl,  the  foreclosure  was  not  an  ulienalion  which  defeated  the  policy,  and 
that  an  action  might  be  brought  upon  it  in  the  mortgagor's  name.  Bragg  v. 
N.  E.  &c.,  5  Fost.  289. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  145 

all  its  former  servitudes.  So  in  case  of  foreclosure,  the  inci- 
dents of  the  estate  remain  attached  to  it,  unaffected  by  any 
act  of  the  mortgagor,  as  if  the  conveyance  had  been  originally 
absolute,  and,  until  foreclosure,  the  mere  entry  of  the  mort- 
gagee upon  both  mortgages,  will  not  effect  a  merger.' 

24.  The  rule,  that  a  plaintiff  in  ejectment  cannot  recover 
premises,  the  title  to  which  is  in  a  third  person,  does  not 
apply  where  the  outstaijding  title  is  a  mortgage.  A  mort- 
gage constitutes  a  title  when  the  mortgagee  comes  into  a 
court  to  enforce  it;  but  till  then,  the  mortgagor  is  the 
owner.-(/)   Upon  the  same  principle,  a  mortgagor  may  main- 

1  Kitger  V.  Parker,  8  Cush.  145-147.       166a,  n.;  Doe  v.  McLoskoy,  2  Ala.  708 ; 
'- Dcii  V.  Dimon,  5  H:\lst.  157;  Elli-     Olmsted   v.   Elder,  1   Seld.  144;   Fon- 
son  V.  Daniels,  11  N.  H.  274;  1  Pow.     taine  v.  Beers,  19  Ala.  722. 


(/)  After  performance  of  the  condition,  the  mortgagor  cannot  maintain 
an  action  for  the  land  against  a  third  person,  in  the  name  of  the  mortgagee, 
though  the  parties  agreed  by  parol  that  such  suit  might  be  brought.  Pres- 
cott  V.  EUingwood,  10  Shepl.  345.  In  Missouri,  -where  the  legal  title  is  in  the 
mortTaoee,  an  outstandins  mortgage  is  sufficient  to  prevent  a  recovery  in 
ejectment,  and  there  is  no  presumption  of  redemption  after  a  lapse  of  time. 
Meyer  r.  Campbell,  12  Mis.  G03.  If  in  trespass  the  defendant  plead,  that 
he  Avas  possessed  of  an  undivided  moiety  of  certain  land,  which  was  flowed 
by  the  plaintiff's  dam,  and  that  therefore  he  entered  and  took  it  down  ;  a 
replication,  that  the  plaintiffs  Avere  seized  of  the  whole  tract  in  fee  and  in 
mortgage,  and  had  the  right  of  possession,  and  therefore,  by  means  of  the 
dam,  caused  the  water  to  overflow  it,  is  insufficient.  Great,  &c.  v.  Worster, 
15  N.  H.  412.  If  the  replication  had  alleged,  that  the  plaintiffs  had  before 
that  time  entered  into  possession  as  mortgagees,  qiicere  ?  lb.  Where  a  de- 
fendant. In  an  action  of  trespass  for  cutting  down  a  dam,  alleged  in  his  plea, 
that  he  was  possessed  of  an  undivided  moiety  of  a  certain  tract  of  land, 
flowed  by  means  of  the  dam,  and  the  plaintifT's  replied,  that  they  were  seized 
in  fee  and  in  mortgage,  and  had  the  right  of  possession,  and  Issue  was  taken 
upon  the  rejoinder  that  they  had  not  the  right  of  possession  ;  held,  the  issue 
was  Immaterial,  and  a  repleader  was  awarded.  lb.  The  mortgagee  and 
mortgagor  of  land  may  be  joined  in  ejectment  as  defendants,  even  though 
the  mortgagee  never  had  been  in  actual  possession.  Marvin  v.  Dennlson, 
20  Verm.  C62.  But  he  will  only  be  answerable  for  rents  and  profits  when  he 
has  received  them  ;  and.  If  the  defendants  plead  severally,  as  they  may  do, 
judgment  may  be  recovered  for  the  damages  against  the  mortgagor  alone.  lb. 
VOL.    I.  13 


146 


THE   LAAV    OF   MORTGAGES. 


[CH.  VIII. 


tain  ejectment  against  one  who  claims  by  a  conveyance  in 
fee-simple  absolute  from  the  mortgagee.  So  a  mortgagor  or 
purchaser  of  the  equity  of  redemption  may  maintain  trespass 
against  the  mortgagee  or  one  acting  under  his  license ;  where 
the  defendant  pleads  liberum  tenementum,  and  the  plaintiff 
replies  that  the  freehold  was  in  himself.^  And  upon  this 
ground,  a  mortgagor  in  possession  gains  a  settlemetit.^ 

25.  The  following  cases  have  been  decided  upon  this  point 
in  England.  St.  9  Geo.  1,  ch.  7,  provided,  that  no  person 
should  gain  a  settlement  by  purchasing  any  estate,  whereof 
the  consideration  was  less  than  X30,  bond  fide  paid.  Hence, 
if  a  pauper  contract  for  the  purchase  of  an  estate  for  ^39, 
which  is  mortgaged  for  <£32,  pay  <£7,  and  take  a  deed  subject 
to  the  mortgage,  or  if  he  contract  to  purchase  for  £52,  and 
pay  but  X12,  mortgaging  to  the  vendor  for  the  balance,  he 
gains  no  settlement.^ 

26.  But  where,  after  purchasing  an  estate  for  the  full  value, 
the  purchaser  obtained  from  a  third  person  a  loan  of  money, 
with  which  he  discharged  the  existing  incumbrances,  and 
took  an  assignment  of  them,  thus  acquiring  the  legal  estate, 
and  then  mortgaged  to  secure  the  loan,  and  remained  in 
possession  forty  days  thereafter ;  held,  he  gained  a  settle- 
ment.* 

27.  The  owner  of  an  equity  of  redentption,  having  been 
ejected  by  the  mortgagee,  was  permitted  by  him  to  occupy 
an  untenanted  house  on  the  land,  for  the  purpose  of  over- 
looking some  repairs  which  he  proposed  to  make,  with  the 
intention  of  selling  the  property  and  })aying  the  mortgage, 
but  with  no  agreement  as  to  rent.  Having  occupied  three 
months,  he  was  removed  as  a  pauper,  not  having  done  any 
thing  towards  repairing  or  selling.     Held,  he  gained  no  settle- 


1  Jackson  v.  Broiison,  I'J  Jolins.  325 
Tliinyaii  v.  Morscreaii,  1 1  .Johns.  .'');34 
Iluckins  V.  Straw,  .34  Maine,  IfJG. 

-  The  Kin<;  v.  St.  Michael's,  Doug 
632.  The  mortijaijee,  if  in  i)OSsessioii 
may  gain  a  settlement.  Tiie  question 
turns  on  possession.     Barkhanijjstead  i 


Farminpton,  2  Conn.  600;  Conway  t>. 
Dceificid,  11  Mass. 327;  Groton  v.Box- 
horongli,  G  Mass.  50. 

»  JJcx  V.  Mattingiy,  2  T.  R.  12. 

■*  liox  V.  Chailcy,  6  T.  R.  755 ;  

V.  Oincy,  1  M.  &  S.  387  ;  v.  Ted- 
ford,  IJurr.  Set.  Cas.  57. 


CH.  VIII.]  ESTATE   OF   THE   MORTGAGOR.  147 

ment,  because,  though  he  had  an  equitable  title,  he  was  not 
legally  in  possession,  and  had  neither  ^^5  in  re  nor  ad  rem? 

28.  Upon  the  same  ground  of  ownership  in  the  mortgagor, 
he  is  required  or  entitled  to  serve  as  a  juror  or  member  of  the 
legislature,  or  may  be  received  as  h^\\.?{g)  So  the  mortgagor 
in  possession  is  liable  for  taxes ;  and  if  the  land  is  sold  for 
taxes,  he  cannot  acquire  a  title  by  purchasing  it,  this  being 
only  a  mode  of  paying  the  taxes.^  In  Massachusetts,'^  a 
mortgagee,  taking  possession,  is  liable  for  taxes  then  due.  In 
Maine,^  land  cannot  be  taxed  to  a  mortgagee  not  in  posses- 
sion, and  a  sale  for  non-payment  of  such  tax  passes  no  title.(A) 

1  Rex  V.  CatherinKton,  3  T.  R.  771.  *  St.  1849,  551. 

-  Montgomerv  v.  Eriiere,  1  South.  267.        ^  Coombs  v.  Warren,  34  Maine,  89. 
3  Ralston  i-.  Hughes,  13  111.  4G9.    See 
Mass.  Rev.  Sts.  1853,  942. 

{(j)  By  St.  7  W.  &  ]\I.  c.  25,  a  mortgagee  could  not  vote  for  members  of 
Parliament  in  right  of  his  mortgage,  unless  in  possession  or  receipt  of  the  rents. 
The  mortgagor,  on  the  other  hand,  had  this  privilege.  1  Pow.  170  a.  See 
Beamish  v.  The  Overseers,  &c.,  7  Eng.  Law  &  Eq.  485  ;  Moore  v.  Overseers, 
&c.,  14,  295.  Under  the  rjame  laws,  a  mortgagor  has  been  held  an  owner, 
or,  in  the  words  of  the  statute,  to  have  real  estate,  etc.,  but  the  clear  yearly 
value  of  the  property  must  be  over  and  above  the  interest  of  the  mortgage. 
Witherell  v.  Hull,  Caldecot,  230.  Where  the  receipt  of  a  clear  yearly  in- 
come from  real  estate  gives  the  party  a  legal  settlement ;  if  he  mortgage  it 
for  a  sum,  the  interest  of  which  does  not  leave  to  the  mortgagor  a  surplus  of 
the  sum  required  ;  he  gains  no  settlement.  Otherwise,  it  seems,  if  the  word 
clear  were  omitted.     Groton  v.  Boxborougli,  6  Mass.  50. 

The  Court  remark  :  —  "If  we  do  not  give  the  term  this  effect,  the  qualifi- 
cation by  a  freehold  estate  would  be  absolutely  nugatory ;  any  man  involved 
in  debt  might  mortgage  his  estate  to  the  full  value,  so  that  the  interest  of  his 
debt  should  e.\.haust  the  whole  annual  income  of  his  lands.  If  this  was  the 
fact,  what  reason  can  be  assigned  why,  for  a  property  so  incumbered,  he 
should  be  admitted  to  gain  a  settlement,  when  in  fact  the  value  of  his  real 
property  is  merely  nominal.     lb.  54. 

A  mortgage,  to  indemnify  a  surety  for  the  purchase-money  of  the  land, 
has  the  same  effect  upon  the  question  of  settlement,  as  if  made  directly  to 
the  seller.     Conway  v.  Deerfield,  11  Mass.  327. 

(h)  See,  as  to  the  liability  of  mortgaged  premises  for  a  publioi  charge  in 
the  nature  of  a  tax,  Norwich  v.  Hubbard,  22  Conn.  587.  If  mortgaged 
land  is  lost  for  non-payment  of  taxes,  the  mortgagee  is  not  responsible  for 
such  loss.     Harvie  v.  Banks,  1  Rand.  408. 


148  THE  LAW   OF  MORTGAGES.  [CH.  VIII. 

29.  In  general,  the  possession  of  a  mortgagor,  or  one 
claiming  under  him,  is  not  regarded  as  adverse  to  the  mort- 
gagee. Thus  in  the  case  of  Hunt  v.  Hunt,i  it  was  held,  that 
a  mortgagee  cannot  be  disseized  by  the  mortgagor.  "  Being 
tenant  at  will,  his  possession  is  not  adverse,  and  any  build- 
ings, improvements,  or  erections  placed  by  the  mortgagor 
upon  the  land,  must  be  considered  as  improvements  upon  the 
estate  mortgaged,  made  by  the  mortgagor  as  owner  of  the 
equity  of  redemption,  and  cannot  be  deemed  a  disseisin. 
The  mortgagor  in  such  case  must  be  considered  as  making 
improvements  upon  his  own  estate,  of  which  he  has  the  full 
benefit  in  the  enhanced  value  of  the  equity  of  redemption."  ^ 

30.  So  in  a  subsequent  case  it  is  said,  "  no  mortgagor  can 
oust  his  mortgagee  by  any  entry  or  by  possession  of  the 
land."  3(i) 

31.  The  same  principle,  as  to  the  ownership  of  the  prop- 
erty by  the  mortgagor,  has  been  applied  to  a  question  of  title 
between  third  persons. 

32.  A  mortgagor  in  possession  authorized  a  third  person 
to  build  a  house  upon  the  land,  which  was  afterwards  sold 
on  an  execution  against  the  latter.  TJie  purchaser  brings  an 
action  for  the  house  against  one  claiming  under  a  sale  by  the 

1  14  Pick.  374.  '^  Per  Shaw,  Ch.  J.,  Root  v.  Bancroft, 

2  Ibid.  .385,  386,  per  Shaw,  Ch.  J.  10  Met.  48 ;  Joyner  ?;.  Vincent,  4  Dev. 
Sec  Nichols  r.  lleynolds,  1  An^'.  (H.  I.)     &  B.  512. 

30 ;   Smartle   v.    William.s,   Salk.   245 ; 
Herbert  v.  Hanrick,  16  Ala.  581. 


(j)  So  the  possession  of  tlio  inorlrjagee  under  the  mortgage  before  the 
law  day,  is  not  adverse  to  tlic  mortgagor.  McGuire  v.  Shelby,  20  Ala.  456. 
So  the  as.signee  of  the  mortgagor  cannot  hold  adversely,  but  is  a  mere  tenant 
at  will  to  the  mortgagee,  unless  he  purchased  without  notice  of  the  mort- 
gage. Newman  v.  Chapman,  2  Rand.  93.  The  same  principle  is  applied 
to  the  possession  of  the  mortgagee  as  against  a  reversioner  seeking  to  re- 
deem. A  mortgagee  remained  in  possession  si.x  years  without  acknowl- 
edgment dt  the  title  of  the  mortgagor,  bought  out  a  tenant  for  life  of  the 
equity  of  redemption,  and  occupied  twenty  years  more.  Held,  his  occu- 
pancy was  not  adverse  during  the  tenancy  for  life,  and  the  reversioner  might 
redeem.     Hyde  v.  Dallaway,  2  Hare,  528. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOE.  149 

mortgagor.  Held,  no  defence,  that  the  mortgagee  did  not 
authorize  the  erection,  and  forbade  the  removal,  of  the  house, 
as  he  had  a  mere  lien  on  the  property,  if  any  interest  in  it, 
and  the  result  of  this  suit  would  not  affect  his  title.  A  doubt 
was  suggested,  whether  the  mortgagee  acquired  even  a  lien 
upon  the  house,  except  for  the  purpose  of  securing  the  rents 
by  taking  possession  ;  and  whether  the  building  was  not  the 
personal  property  of  the  builder.^ 

33.  A  mortgagee  has  the  right  of  immediate  possession,  un- 
less agreed  to  the  contrary,  which  he  may  enforce  either  by 
entry  or  action.  In  Lackey  v.  Holbrook^-  Dewey,  J.,  says  :  — 
"  A  mortgagee  has  a  right  to  immediate  possession  of  the 
mortgaged  premises,  when  there  is  no  agreement  that  the 
mortgagor  shall  retain  the  possession  until  a  breach  of  the 
condition  of  the  mortgage.  This  doctrine,  so  well  settled  by 
repeated  decisions  of  this  Court,  has  now  become  incorpo- 
rated into  the  statute  law  of  the  Commonwealth." (y)  In  an 
action  on  the  deed,  the  mortgagee  is  not  required  to  show  a 
breach  of  the  condition,  unless  his  object  be  to  foreclose  by 
means  of  a  conditional  judgment.^ 

1  Jewett  V.  Patridge,  3  Fairf.  243.  ]\Iis.  229  ;  Smith  v.  Taylor,  9  Ala.  633  ; 

"  11  Met.  460;  Allen  r.  Parker,  27  Mclntyre  v.  Whitfield,  13  Sm.  &  M.  88; 

Maine,  531 ;  Miner  v.  Stevens,  1  Cush.  Stevens  v.  Brown,  Walk.  Ch.41 :  Wales 

485  ;  Mansony  r.  United  States,  &c.,  4  v.  Mellen,  1  Gray,  512  ;  Taylor  v.  Weld, 

Ala.  N.  S.  745,  746  ;  Hobart  v.  Sanborn,  5  Mass.  120 ;  Brown  v.  Leaeh,  35  Maine, 

13  N.  H.  226 ;  Harmon  v.  Short,  8  Sm.  39 ;  Brown  v.  Stewart,  1  Md.  Ch.  87. 
&  M.  433  ;   Walcop  v.  McKinney,  10        «  Darling  v.  Chapman,  14  Mass.  104. 


Q')  In  several  of  the  States,  this  subject  has  been  regulated  by  statute. 
In  Massachusetts,  the  mortgagee's  general  right  of  possession  is  recognized. 
(Mass.  Rev.  Sts.  635.)  So  in  Maine,  (Me.  Rev.  Sts.  553  ;  Ruby  v.  Abys- 
sinian, &c.,  3  Shepl.  306.)  In  Vermont,  it  is  provided,  that  the  mortgagor 
may  retain  possession  till  breach  of  condition,  unless  the  deed  clearly  show 
the  contrary.  So  in  Wisconsin.  Rev.  Sts.  ch.  78,  §  1210.  In  New  York, 
a  statutory  provision  limits  the  mortgagee's  remedy  for  possession  to  a  suit 
upon  the  special  contract,  if  any,  or  to  a  process  for  foreclosure  and  sale, 
after  default.  2  N.  Y.  Rev.  Sts.  408.  In  Indiana,  the  statute  of  1S43,  de- 
priving a  mortgagee  of  the  right  of  possession,  has  no  effect  after  foreclosure 
and  sale.  Jones  v.  Thomas,  8  Blackf.  428.  See  Morgan  v.  Woodward, 
1  Cart.  446  ;  Hanna  v.  Countryman,  lb.  493 ;  Smith  v.  Porter,  35  Maine,  287. 

13* 


150  THE   LAW   OF  MORTGAGES.  [CH.  VIII. 

34.  Where  the  mortgagee  has  entered  before  breach  of 
condition  without  notice,  a  tenant  at  will  under  him  may- 
maintain  an  action  of  trespass  against  the  mortgagor  for 
entering  upon  the  premises,  and  expelling  him  therefrom.^  (A;) 
So  the  mortgagor  cannot  maintain  an  action  of  trespass  for 
such  entry,  against  the  mortgagee  and  an  officer  who  entered 
with  him,  by  opening  an  outer  door  in  the  absence  of  the 
mortgagor  and  his  family,  without  previous  notice  to  quit ; 
although  the  officer  attached  the  plaintiff's  goods  upon  such 
writ.^  So  the  mortgagor  cannot  maintain  trespass  against 
the  mortgagee  for  entering  and  carrying  away  a  fixture.^ 

35.  Mortgage  of  a  term,  conditioned  for  the  payment  of  a 
certain  svim  with  interest,  at  certain  periods,  with  a  power  to 
sell  after  three  months'  notice,  in  case  of  non-payment,  and  a 
covenant  by  the  mortgagor  to  pay,  and  that  the  mortgagee, 
at  any  time  after  default,  might  enter  and  take  the  rents  and 
profits  for  the  residue  of  the  term.  Held,  the  mortgagee 
might  enter  before  default,  and  before  any  day  named  for 
payment.^ 

36.  But  if  the  mortgagee  enters  under  a  claim  adverse  to 
the  mortgage  title,  the  mortgagor  may  maintain  an  action  of 
trespass  against  him.-5(/) 

1  Reed  V.  Davis,  4  Piek.  217.  *  Rogers  v.  Grazebrook,  8  Ad.  &  El. 

2  Lackey  v.  Holbrook,  11  Met.  460.  (N.  S.)  895. 

3  ChcUis  V.  Stearns,  2  Fost.  312.  ^  Merithcw  v.  Sisson,  3  Kerr,  373. 

(i)  In  the  case  of  Reed  v.  Davis,  where  this  pomt  was  decided,  the  coun- 
sel for  the  defendant  began  to  argue,  that  such  notice  was  required  by  law ; 
but  the  Court  refused  to  hear  an  argument  upon  the  question,  saying  it  was 
one  of  the  settled  points  of  law  that  notice  was  not  necessary.  In  the  same  . 
case,  brought  for  breaking  and  entering  the  plaintifl's  dwelling-house,  put- 
ting out  his  furniture,  and  forcibly  expelling  the  plaintiff  and  his  family;  the 
Court  lefused  to  set  aside  a  verdict  for  $500  damages.  A  mortgagee  of 
slaves,  after  breach  of  condition,  may  lawfully  seize  them,  after  night,  for 
the  purpose  of  foreclosure,  without  violence  to  the  mortgagor,  his  family  or 
houses.  Satterthwaitc  v.  Kennedy,  (Ct.  of  Err.  S.  C.)  Law  Rep.  Aug.  1849, 
p.  206. 

(/)  As  to  the  title  of  the  hrir  and  executor  of  a  mortgagee  who  dies  after 
having  entered  before  breach  of  condition;  see  Smith  v.  Uyer,  IG  Mass.  18. 


CH,  YIII.]        ESTATE  OF  THE  MORTGAGOR.  151 

36  a.  An  entry  by  a  mortgagee  to  survey  the  premises, 
merely  for  the  purpose  of  obtaining  information  respecting 
the  boundaries,  or  to  exercise  a  power  not  warranted  by  the 
mortgage,  as  to  flow  the  land  by  a  dam  erected  on  other  land 
belonging  to  him,  is  not  a  possession  under  the  mortgage.^ 

37.  An  agreement,  that  the  mortgagor  may  retain  posses- 
sion, must  appear  by  the  deed  itself,  or  some  other  writing ; 
parol  evidence  of  it  is  insufficient. (7?i)  And  this  doctrine  has 
been  applied,  even  in  a  case  where  the  mortgage  was  con- 
ditioned to  support  the  mortgagee  and  his  wife,  and  the  facts 
indicated,  that  the  mortgagor's  only  resource  for  furnishing 
such  support  was  in  the  use  of  the  estate  mortgaged.  In  that 
case,2  the  Court  remark  :  —  "  There  can  be  no  doubt  that  the 
parties  intended  that  the  mortgagor  should  remain  in  pos- 
session, until  there  was  a  breach  of  the  condition  of  the  deed. 
But  by  the  principles  of  the  common  law,  as  well  as  our  own 
statutes  relating  to  the  conveyance  of  real  estate,  agreements 
to  that  effect  must  be  in  waiting  to  be  obligatory.  It  is  time 
it  was  known  that  contracts  like  this,  where  one  party  con- 
veys his  estate  to  another,  in  consideration  of  a  support  to  be 
furnished  by  the  purchaser,  and  the  latter  mortgages   the 

"estate  for  security,  will  not  answer  the  intended  purposes, 
without  a  covenant  that  the  mortgagor  shall  remain  in  pos- 
session. How  the  parties  in  this  case  will  adjust  the  claims 
of  the  mortgagee  for  the  stipulated  support,  when  he  has 
obtained  possession  of  the  estate  out  of  which  it  was  probably 
to  be  afforded,  it  is  difficult  to  tell.  We  however  cannot 
make  law  to  suit  particular  contracts." 

38.  In   a   later   case,^    Wilde,   J.,   remarks:  —  "Such   an 

1  Great  Falls.  &c.  v.  Worster,  1 5  N.  H.         ^  pj^gg  v,  Flagjr,  1 1  Pick.  477.     See 
412.  '  George's  &c.  v.  Detwold,  1  Md.  225; 

-  Colman  v.  Packard,  16  Mass.  39,  40.     Chcllis  v.  Stearns,  2  Fost.  312. 


(m)  Wliether  the  same  courts,  Miiich  allow  a  mortgage  to  be  itself  created 
by  parol  evidence,  might  not  also  receive  parol  proof  of  an  agreement  for 
the  mortgagor's  continued  possession,  is  a  point  perhaps  deserving  of  con- 
sideration. 


152  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

agreement  is  usually  inserted  in  English  mortgages,  and 
may  operate  by  way  of  estoppel,  covenant,  condition,  or 
reservation.  Such  a  clause,  inserted  in  the  mortgage  deed, 
or  other  deed  made  at  the  same  time,  and  being  part  of  the 
same  transaction,  is  undoubtedly  binding  on  the  mortgagee, 
and  is  to  receive  a  liberal  construction,  as  it  generally  has  an 
operation  beneficial  to  both  parties."  Professor  Greenleaf 
says :  ^  "  Whether,  in  the  absence  of  any  express  contract,  such 
agreement  (for  the  possession  of  the  mortgagor)  may  be  im- 
plied from  the  fact  alone  of  the  mortgagor  being  suffered  to 
remain  in  possession  of  the  premises,  or  from  that  fact,  and 
a  corresponding  usage  in  the  country,  is  not  perfectly  clear 
upon  the  authorities.  As  an  inference  of  law,  perhaps  the 
Court  might  not  presume  it ;  but  would  leave  the  jury  to 
find  an  agreement  or  license,  if  properly  pleaded."  (w)  It 
has  been  held,  that  such  agreement  may  be  implied  from  a 
note,  made  at  the  same  time  with,  though  not  referred  to  in, 
the  mortgage.2  So  it  is  said,^  there  must  be  a  necessary  im- 
plication, to  give  the  mortgagor  an  implied  right  of  pos- 
session. 

39.  Mortgage,  with  a  proviso  for  redemption,  on  payment 
of  principal  and  interest,  June  5,  1834 ;  but  with  an  agree- 

1  2  Greenl.  Cruise,  102,  n.    Sec  Sliute        3  Hobart  v.  Sanborn,  13  N.  H.  226  ; 
V.  Grimes,  7  Blackf.  1.  Wales  v.  Mcllen,  1  Gray,  513. 

-  Clay  V.  Wren,  34  Maine,  187. 


(?t)  In  the  case  of  Jamieson  v.  Bruce,  (G  Gill  &  J.  72,)  a  mortgage  was 
made  on  the  19th  of  August,  1831,  of  certain  slaves,  with  a  condition  to  be 
void,  if  the  debt  were  paid  on  or  before-  September  1,  1832.  There  was  no 
stipulation  for  the  mortgagor's  remaining  in  possession  ;  but  he  was  allowed 
thus  to  remain  till  November,  1831,  when  the  mortgagee  took  possession  of 
the  property  in  the  night,  in  the  absence  of  the  mortgagor,  who  brings  this 
action  of  trespass  against  him.  The  Court  were  requested  to  instruct  th6 
jury,  that  if  they  found  from  the  evidence,  that  the  plaintiff  retained  posses- 
sion with  the  defendant's  consent,  and  that  the  property  was  taken  by  the 
defendant,  without  the  plaintiff's  knowledge  or  consent,  and  without  a  pre- 
vious demand,  the  action  was  maintainable :  but  the  instruction  was  refused ; 
and  the  judgment  of  the  Court  below  was  affirmed. 


CH.  VIII.]  ESTATE   OF  THE  MORTGAGOR.  153 

ment  that  the  principal  should  not  be  called  in  before  De- 
cember 5,  1840,  if  the  interest  were  regularly  paid  in  the 
mean  time  ;  and  that  the  mortgagor  should  occupy  and  take 
the  profits  until  default.  Held,  the  fee  vested  in  the  mort- 
gagee, but  the  premises  were  redemised  to  the  mortgagor 
till  December  5,  1840,  if  the  interest  were  regularly  paid.^ 

40.  Mortgage,  conditioned  to  deliver  so  much  of  the  pro- 
duce of  the  land  annually,  or  support  the  mortgagees  during 
their  lives.  Held,  tiU  breach  of  condition,  the  mortgagor 
was  entitled  to  possession,  and  therefore,  the  actual  tenant 
of  the  freehold.2  So,  where  the  mortgagee  of  a  mill  gave 
back  to  the  mortgagor  a  bond,  reciting  the  privileges  which 
^e  latter  was  to  have  in  using  the  water,  dam,  &c.,  cove- 
nanting to  build  machinery  in  the  mill,  and  that  neither  he 
nor  others,  by  his  permission,  would  follow  the  business 
while  the  mortgagor  followed  it ;  and  reserving  the  use  of  a 
room  in  the  mill  for  a  specified  time  ;  it  was  held  that  the 
mortgagor  had  a  right  of  possession  till  breach  of  condition, 
and  that  a  writ  of  entry  would  not  lie  against  him.'^  So, 
where  a  farm  was  mortgaged,  upon  the  condition  that  the 
mortgagor  should  carry  it  on  during  the  mortgagee's  life,  and 
deliver  him  half  the  produce ;  it  was  held,  that  the  mortga- 
gee might  enter  to  take  this  part  of  the  produce ;  but  not 
otherwise,  except  for  waste  or  breach  of  condition.* 

40  a.  INIortgage,  conditioned  that  the  mortgagor  should 
support  the  mortgagees  during  their  lives.  The  equity  of 
redemption  having  been  transferred,  one  of  the  mortgagees, 
the  other  being  dead,  brings  an  action  upon  the  mortgage 
for  breach  of  condition.  The  plea  alleges,  that  the  assignee 
had  always  offered  to  support  the  demandant  at  his  (the 
assignee's)  own  house,  in  a  different  town  from  that  where 
the  land  lay.  Upon  demurrer  to  the  plea,  it  was  argued  for 
the  demandant,  that  the  mortgagees  reposed  a  personal  trust 
and   confidence  in   the  mortgagor  and   his  representatives, 

1  "Wilkinson  v.  Hall.  4  Scott,  301.  *  Plartshora  v.  Hubbard,  2  N.  H.  453. 

2  Limb  r.  Foss,  8  Shepl.  240.  Sec  ch.  6,  \  23. 
2  Bv'an  V.  Mayo,  5  Greenl.  89. 


154  THE  LAW   OF  MORTGAGES.  [CH.  VIII. 

which  was  violated  by  assigning  the  former  to  the  care  of 
sti-angers,  and  that  it  was  to  be  fulfilled  upon  the  land  mort- 
craged.  The  tenant  contended,  that  the  mortgagee  could 
not  claim  possession,  and  thus  take  the  very  fund  from 
which  her  support  was  to  be  derived.  Held,  the  mortgagees 
had  a  right  to  be  supported  wherever  they  chose  to  live  ;  not 
creating  needless  expense.  The  demandant,  therefore,  has  a 
right  to  possession,  unless  the  mortgagor  pray  for  conditional 
judgment ;  in  which  case  an  estimate  may  be  made  of  the 
time  for  which  the  demandant  has  been  left  without  sup- 
port.i 

40  b.    Mortgage,   conditioned   to   support   the    mortgagee 
during  his  life,  on  the  estate,  and  keep  it  in  repair.     Hel 
the  mortgagee  had  no  right  of  immediate  possession.^ 

41.  A  mortgage  was  made  upon  condition  to  furnish  sup- 
port for  the  mortgagee  and  his  wife,  and  the  use  of  one  third 
part  of  the  house  upon  the  land,  during  their  lives.  In  an 
action  of  the  mortgagee  to  recover  possession,  it  was  held 
that  the  plaintiff  could  not  maintain  the  action  without  first 
proving  a  breach  of  condition.  To  show  this,  evidence  was 
introduced,  that  the  defendant  pushed  his  mother  (the  wife 
of  the  plaintiff)  out  of  the  house,  and  kicked  her  after  she 
was  out.  Held,  the  action  could  not  be  maintained.  The 
Court  say :  —  "A  refusal  to  permit  the  husband  or  wife  to 
occupy  their  third  would  be  a  breach  of  the  condition,  if  the 
third  had  been  set  off;  and  a  forcible  ejectment  from  it, 
under  any  pretence  of  claim,  or  upon  a  controversy  about 
the  right,  would  be  quite  as  clear  a  breach.  And  if  no  di- 
vision had  been  made,  but  the  parties  were  living  together  as 
tenants  in  common  of  the  house,  it  could  make  no  difference. 
The  mortgagor  would  be  no  better  entitled,  in  such  case,  to 
hold  the  other  parties  out,  or  forcibly  turn  them  or  either  of 
them  out.  If  he  did  either,  upon  any  controversy  about  the 
right,  or  any  claim  of  title,  he  could  not  be  said  to  furnish 


1  Wilder  V.  Whittemorc.  15  Mass.  2G2.  ^  Brown  v.  Lcacb,  35  Maine,  a9  ;  ace. 

Norton  v.  Webb,  lb.  218. 


CH.  YIII.]        ESTATE  OF  THE  MORTGAGOR.  155 

them  one  third  part  of  the  house."  But  in  the  absence  of 
any  such  claim  or  controversy,  the  transaction  was  a  mere 
assault,  though  an  aggravated  one,  and  not  a  breach  of  con- 
dition. "  The  condition  of  the  mortgage  is  not  an  obligation 
to  keep  the  peace  —  even  within  the  house.  The  obligation 
to  fmrnish  support  does  not  include  within  it  a  stipulation  to 
treat  with  reverence  or  affection."  ^ 

42.  Conveyance  of  a  farm  by  a  father  to  his  son,  with  a 
mortgage  back  to  the  grantor  and  his  wife,  conditioned  that 
the  mortgagor,  his  heirs,  &c.,  should  provide  for  the  main- 
tenance of  the  mortgagees  during  their  lives.  Held,  it  was 
a  necessary  implication,  nothing  appearing  to  the  contrary, 
that  the  parties  did  not  contemplate  that  the  mortgagees 
should  take  possession  and  retain  it  until  their  decease, 
while  the  mortgagor  was  duly  performing,  from  time  to 
time,  those  acts,  to  secure  the  due  performance  of  which  the 
mortgage  was  executed ;  and  that  they  could  not  maintain 
an  action  for  possession  till  breach  of  condition  or  the  com- 
mission of  waste.2  ^Q^ 

1  Deaftjorn  v.  Deail)orn,  9  N.  H.  117. 

2  Flanders  v.  Laraphcar,  9  N.  H.  201 ;  ace.  Ehoades  v.  Parker,  10  N.  H.  83. 


(o)  In  the  same  case  it  -was  further  held,  that  the  place  of  performance  of 
the  condition  was  not  necessarily  the  farm  itself;  but  some  suitable  and  con- 
venient place  for  the  mortgagee,  and  at  the  same  time  one  -which  did  not  im- 
pose hardship  upon  the  mortgagor.  It  should  be  a  reasonable  place  for  both 
parties.  It  was  further  held,  that  by  the  transaction  between  the  parties, 
a  personal  trust  was  reposed  in  the  mortgagor,  and  a  personal  obligation 
assumed  by  him,  which  he  could  not  assign  over  to  third  persons,  substituting 
them  in  his  place  ;  and  that  if  be  had  attempted  such  transfer,  and  no  longer 
superintended,  at  least,  the  due  fulfilment  of  the  condition,  the  action  might 
be  maintained.  lb.  In  the  subsequent  case  of  Holmes  v.  Fisher,  13  N.  H.  9, 
it  was  held,  that  where  a  mortgage  is  made  to  the  husband,  conditioned  to 
support  him  and  his  wife,  his  administrator,  after  his  death,  must  sue  upon 
the  mortgage.  The  wife  has  no  right  to  enter.  If  she  marry  again,  and 
live  with  her  second  husband  without  claiming  support  under  the  mortgage, 
the  right  is  waived,  and  does  not  revive  till  a  demand  is  made.  A  demand 
need  not  be  made  upon  the  land,  unless  by  the  terms  of  the  deed  the  sup- 


156  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

42  a.  Condition  of  a  mortgage,  as  follows:  — "  Whereas, 
the  above-named  Hannah  Wales  (plaintiff)  has  this  day,  by- 
deed,  conveyed  to  the  said  Nathaniel  K.,  (defendant)  the 
above-mentioned  premises,  for  her  future  maintenance  and 
support,  and,  whereas,  the  said  Nathaniel  K.  has,  at  the 
same  time,  reconveyed  the  same  premises  to  said  Hannah, 
as  security  for  such  maintenance  and  support.  Now,  if  the 
said  Nathaniel  K.,  his  heirs,  &c.,  shall,  &c.,  maintain  the  said 
Hannah  in  sickness  and  in  health,  &c.,  and,  at  her  decease, 
give  her  a  decent  burial,  then  the  above,  &c.,  shall  be  void," 
&c.  Held,  no  action  could  be  maintained  by  the  mortgagee 
for  possession  before  condition  broken.  By  taking  the  prem- 
ises from  the  defendant,  the  demandant  would  probably  pre- 
vent him  from  carrying  into  effect  the  purpose  for  which 
alone  the  mortgage  is  expressed  to  be  made.^ 

43.  A  mortgage,  made  to  secure  an  annuity,  conveyed  the 
land  in  trust,  among  other  things,  to  permit  the  mortgagor 
to  receive  the  rents  till  a  default,  for  sixty  days,  in  payment 
of  the  annuity.  Held,  the  conveyance  amounted  to  a  re- 
demise to  the  mortgagor  till  such  default,  and  that  a  notice 
to  quit,  given  by  him  in  his  own  name  to  a  tenant  whom  he 
let  into  possession  before  the  mortgage,  was  sufficient  to  sus- 
tain ejectment  against  the  tenant  on  his  own  demise.^ 

1  Wales  V.  JlcUcn,  1  Gray,  512.  this  case:  —  "It  may  be   questionable 

-  ])ne  r.  Goldwin,  2  Ad.  &  El.  (N.  S.)  whether  sutlieient  attention  was  paid  in 

143.    in  Doe  v.  Day,  2  Ad.  &  El.  (N.  S.)  that  case  to  the  i)oint  as  to  tlie  certainty 

155,  Lord  Denman  says,  in  regard  to  of  the  time." 

port  is  to  be  there  furnished.  She  may  demand  it,  notwithstanding  her 
marriage;  and  she  may  make  the  demand  upon  the  administrator  of  the 
mortgagor.  Her  husband  cannot  participate  in  the  support.  If  no  place  is 
fi.xcd,  slie  must  be  ready  to  receive  tlie  support  at  a  convenient  place. 

Bond  and  mortgage,  conditioned  to  support  tlie  obligee  for  life.  A  bill 
for  foreclosure  alleged  a  breach  for  the  past  year ;  and  there  were  no  supple- 
mentary pleadings.  Held,  the  plaintiff  could  not  l)ave  a  decree  for  breaches 
sub.se(iuent  to  tiie  commencement  of  suit ;  the  ])rovisions  of  the  Revised 
Statutes  (2,  102,  193,)  relating  to  foreclosure  and  sale  for  such  instalmen.s, 
being  applicable  only  to  mortgages  for  the  payment  of  money.  Ferguson  v. 
Ferguson,  2  Comst.  3G0.     (Three  Judges  dissented.) 


CH.  VIII.]  ESTATE   OF   THE   MORTGAGOR.  157 

44.  So  where  the  mortgage  provides  that  the  mortgagor 
may  enjoy  the  land,  until  default  in  payment  by  a  certain 
day ;  although  the  land  is  occupied  by  tenants,  the  proviso 
will  operate  as  a  redemise  for  this  period.^ 

45.  But  it  is  said,  where  the  proviso  is,  that  the  mortga- 
gee may  enter  and  take  possession  on  default  of  payment  at 
the  day ;  or  that  he  shall  not  take  the  profits  till  default  in 
payment ;  or,  it  seems,  that  th^  mortgagor  shall  take  the 
profits  until  default  in  payment  (no  definite  time  being,  in 
the  last  case,  fixed  for  payment)  ;  the  proviso  only  amounts 
to  a  covenant,  and  the  mortgagee  may,  at  any  time,  bring 
ejectment  without  notice,  though  by  the  proviso  he  be  re- 
quired to  give  notice  before  entry,  or  though  there  be  a  cov- 
enant for  further  assurance  by  the  mortgagor  in  case  of 
default  in  payment.^ 

46.  In  Wheeler  v.  Montefiore,3  the  plaintijEF  brought  an 
action  of  trespass  against  an  officer,  for  breaking  and  enter- 
ing his  house,  and  seizing  fixtures  and  goods  therein.  The 
plea  denied  the  plaintiff''s  possession.  The  defendant  also 
justified  under  a  fi.  fa.  against  one  Franks,  who  was  a  ten- 
ant for  years,  and  had  demised  to  the  plaintiff",  by  way  of 
mortgage,  for  the  residue  of  the  term,  wanting  one  day. 
The  plaintiff"  had  not  entered.  The  deed  demised  to  the 
plaintiff"  to  hold  henceforth,  (as  above  stated)  subject  to  the 
following  proviso.  It  also  conveyed  the  fixtures,  &c.,  to 
hold  for  his  own  use,  &c.,  with  the  same  condition.  The 
deed  also  contained  provisos  for  reconveyance  upon  pay- 
ment of  the  debt  on  the  24th  of  June,  and  also,  that,  upon 
non-payment  at  that  time,  the  plaintiff  might  enter  and  take 
the  profits,  and  sell  or  underlet.  There  was  no  covenant 
that  Franks  should  remain  in  possession  till  the  24th  of  June. 
Held,  the  plaintiff"  had  no  right  of  possession  till  that  time, 
and  that  the  action  could  not  be  maintained. 

47.  If  the  mortgagee  of  a  term,  where  the  mortgage  pro- 

1  Wilkinson  V.  Hall,  3  Bin-   (X.  C.)     147  ;  Doe  v.  Li«rhtfoot,  8  M.  &  W.  553; 
508;  Powsclvr.Blackman.Cio.  Jac.Col).     Eo^^crs  v.  Grazdirook,  8  Q.  B.  895. 

2  Coote,  376  :    Doe  v.  Day,  2  Q.  B.        »  2  Ad.  &  Ell.  (X.  S.)  137. 

VOL.    I.  14 


158  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

vides  that  the  mortgagor  may  retain  possession,  assigns  the 
term  without  the  mortgagor's  joining  or  being  a  party ;  the 
latter,  from  being  in  the  natm-e  of  a  tenant  at  will,  becomes 
in  the  nature  of  a  tenant  at  sufferance.^ 

48.  In  Smartle  v.  William s,^  it  was  held,  that  the  mortga- 
gor's continuing  in  possession  would  never  make  a  disseisin, 
for  a  tenant  at  sufferance  has  but  a  bare  possession,  and  no 
freehold ;  that  the  covenant  for  the  mortgagor's  possession 
governs  all  assignments  of  the  mortgagee ;  and,  therefore, 
that  an  assignee  of  the  mortgage  of  a  term  might  validly 
reassign  it,  notwithstanding  such  possession,  without  any 
reentry,  and  without  the  mortgagor's  joining.  And  the  as- 
signee's bringing  an  ejectment  is  not  to  be  construed  as  an 
election  to  consider  the  mortgagor  as  a  disseizor,  because  the 
action  is  brought,  not  to  recover  the  term,  but  only  the  pos- 
session, being  the  only  remedy  for  this  purpose  except  a  for- 
cible entry,  which  the  law  forbids. 

49.  It  will  be  seen,  hereafter,  that  the  law  has  generally 
provided  certain  specific  modes  and  forms  of  taking  posses- 
sion, for  the  purpose  of  effecting  the  foreclosure  of  a  mortgage. 

50.  It  has  been  held,  however,  that  if  a  mortgagee  had  a 
legal  right  to  enter  for  breach  of  condition,  the  entry  is  law- 
ful, though  he  entered  without  executing  his  purpose,  or 
even  for  other  purposes.  Though  the  entry  cannot  operate 
as  an  entry  to  foreclose,  unless  made  in  the  manner  pre- 
scribed by  law  ;  still  it  is  a  lawful  act.^ 

/51.  When  the  mortgagee  of  land,  with  a  mill  thereon, 
makes  an  entry  under  his  mortgage  title  upon  the  premises, 
and  demands  of  the  tenant,  holding  by  parol  lease  from  the 
mortgagor,  to  attorn  to  him,  and  the  tenant  assents  to  such 
demand  ;  such  entry  and  attornment  make  the  mortgagee  an 
occupant  of  the  mill,  within  the  provisions  of  the  Rev.  Sts. 
of  Massachusetts,  ch.  116,  §  24,  and  liable  to  an  action  for 
annual  or  gross  damages  for  flowage  ;  although  the  mortga- 
gee; did  not  enter  for  the  purpose  of  foreclosure.'^ 

1  I  ]V)W.  162/;;  Skin.  42.'J.  '■'  IJlaiicy  r.  Ik'arce,  2  Grccnl.  1.18. 

-  S;ilk.  245.  •*  Abbott  v.  Uiiliani,  13  Met.  172.- 


CH.  IX.]        ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION. 


159 


CHAPTER  IX. 

NATURE   OF  THE  MORTGAGOR'S  INTEREST,    WHILE  LEFT  IN   POSSES- 
SION. 


1.  Whether  the  mortgagor  is  a  tenant, 
receiver,  agent,  &c. 

13.  Remedies  of  the  mortgagee  for 
rent,  and  for  obtaining  possession.  No- 
tice to  quit,  whetlier  necessary. 

20.  Doctrine  in  the  United  States. 

26.  Lease  by  the  mortgagor  ;  respect- 
ive titles  of  mortgagee,  mortgagor,  and 
lessee  :  case  of  Kecch  v.  Ilitll. 


63.  Distinction  between  leases  made 
after,  and  before,  the  mortgage. 

69.  Joint  lease  by  mortgagor  and 
mortgagee  ;  covenants  in  the  lease  of  a 
mortgagor,  whether  assignable.  &c. 

79.  Liability  of  a  mortgagee  of  lease- 
hold upon  the  covenants ;  case  of  Eaton 
V.  Jacques. 


1.  The  precise  nature  of  the  mortgagor's  interest  or  tenure, 
while  he  retains  possession,  has  been  the  subject  of  much 
speculation  and  various  opinions.  He  has  been  called  tenant 
at  ivill,  quasi  tenant  at  ivill,  tenant  at  sufferance,  agent,  servant, 
and  receiver  (a)  of  the  mortgagee ;  but  objections  have  been 
made  to  each  of  these  titles,  upon  the  ground  that  in  some 
one  or  more  particulars,  the  rights  and  duties  of  a  mortgagor 
differ  from  those  of  either  of  the  persons  above  named.  Thus 
he  is  said  to  want  the  chief  characteristic  of  a  tenant,  which 


(«)  In  Moss  I'.  Gallimore,  (Doug.  283,)  Ashurst,  J.,  remarked,  that  where 
there  is  no  agreement  amounting  to  a  redemise  to  the  mortgagor,  and  ten- 
ants are  in  possession,  and  the  mortgagor  left  in  receipt  of  rents  ;  he  is  not  a 
tenant,  because  a  tenant  at  will  cannot  have  an  under-tenant,  but  he  is  in 
the  nature  of  a  receiver.  "  Whoever  wishes  to  wade  through  all  the  old 
books  on  this  subject,"  (the  nature  of  the  title  of  the  mortgagor)  "  will  find  a 
great  collection  of  cases  in  Comyns's  Digest,  title  Estate  1,  H.  But  it  is  an 
Herculean  labor."  Per  Buller,  J.,  Birch  v.  Wright,  1  T.  R.  383.  As  to 
the  equivocal  relation  of  mortgagor  and  mortgagee,  a  learned  Judge  ex- 
claims, "  Quo  teneam  vultus  mutantem  Protea  nodo."  Cholmondeley  v. 
Clinton,  2  Jac.  &  W.  183.  See  McKim  v.  Mason,  3  Md.  Ch.  180.  A  mort- 
gagee,  taking  possession,  has  been  sometimes  held  subject  to  the  liabilities  of 
a  tenant.    Morrison  v.  McLeod,  2  Ired.  Ch.  1U8. 


160  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

is  the  payment  of  rent ;  of  an  agent,  in  not  being  liable  to 
account ;  and  of  a  servant,  inasmuch  as  the  mortgagee  has 
never  had  possession. 

2.  Hence,  it  has  been  remarked  by  a  distinguished  Judge, "  it 
is  very  difficult  to  say  what  the  mortgagor's  estate  is  ;  "  ^  (b) 
and  in  another  case,  "  one  is  much  at  a  loss  as  to  the  proper 
terms  in  which  to  describe  the  relation  of  mortgagor  in  pos- 
session and  mortgagee."  ^  So  Lord  Denman  says  :  ^  —  "  It  is 
very  dangerous  to  attempt  to  define  the  precise  relation  in 
which  the  mortgagor  and  mortgagee  stand  to  each  other  in 
any  other  terms  than  those  very  words  ;  but  thus  much  is 

1  Per  Patteson,  J.,  Doe  v.  Barton,  11  ^  ih_  Doer.Williams,5  Afl.&E11.297. 
Ad.  &  Ell.  311.  "  Doe  v.  Barton,  11  Ad.  &  Ell.  314. 


(&)  The  following  passage,  from  a  work  of  high  authority,  presents  a  sum- 
mary view  of  the  technical  embarrassments  connected  with  the  title  of  the 
mortgagor :  — 

"  It  is  the  common  course,  if  a  man  make  a  feoffment  in  fee,  or 
other  estate  upon  condition,  that  if  such  a  thing  be  or  be  not  done  at 
such  a  time,  that  the  feoffor,  &c.,  shall  reenter,  to  the  end  that  in 
this  case  the  feoffor,  &c.,  may  have  the  land,  and  continue  in  pos- 
session until  that  time,  to  make  a  covenant  that  he  shall  hold  and  take 
the  profits  of  the  land  until  that  time  ;  and  this  covenant  in  this  case  will 
make  a  good  lease  for  that  time,  if  the  uncertainty  of  the  time,  whcreunto 
care  must  be  had,  do  not  make  it  void.  Mr.  Preston  adds :  "  The  limitation 
of  a  certain  term,  with  a  collateral  determination  on  the  event,  would  meet 
the  difliculties  of  the  case."  And,  therefore,  if  A.  bargain  and  sell  his  land 
to  B.,  on  condition  to  reenter  if  he  pay  him  $100,  and  B.  doth  covenant  with 
A.,  that  he  will  not  take  the  profits  until  default  of  payment;  in  this  case, 
howbeit  this  may  be  a  good  covenant,  yet  it  is  no  good  lease,  "  for  want," 
says  Mr.  Preston,  "  of  a  more  formal  conti'act,  and  also  for  want  of  certainty 
of  time."  And  if  the  mortgagee  covenant  with  the  mortgagor,  that  he  will 
not  take  the  profits  of  the  land  until  the  day  of  payment  of  the  money  ;  in 
this  case,  albeit  the  time  be  certain,  yet  this  is  no  good  lease,  but  a  covenant 
only,  "since,"  says  Mr.  Preston,  "tlie  words  are  negative  only,  and  not 
affirmative."  It  may  perhaps  be  concluded,  that,  in  order  to  make  a  re-de- 
mise, there  must  Ijc  an  ajjimuilire  covenant,  that  tlie  mortgagor  shall  hold 
for  a  determinate  time,  and  that  when  either  of  those  elements  is  wanting, 
there  is  no  re-demise.  1  Smith's  Leading  Cases,  5C.S,  n.,  citing  Slu'i).  Touch. 
8th  ed.  272.     See  Jennot  v.  Cooly,  1  Lev.  170. 


en.  IX.]        ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  161 

established  by  the  cases  of  Partridge  v.  Bere,  and  Hitchman 
V.  Walton,  that  the  mortgagee  may  treat  the  mortgagor  as 
being  rightfully  in  possession,  and  himself  as  reversioner ; 
so  that,  as  long  as  he  be  not  treated  as  a  trespasser,  his  pos- 
session is  not  hostile  to  nor  inconsistent  with  the  mortgagee's 
right." 

3.  The  following  remarks  upon  this  subject  are  made  by 
Mr.  Coventry :  1 — "A  mortgagor  differs  from  a  tenant  at 
will  in  many  respects.  He  is  to  pay  interest,  not  rent.  He 
is  not  entitled  to  notice  to  quit,  nor  to  emblements  ;  the  crop, 
as  well  as  the  land,  being  held  as  security  for  the  debt,  (c) 

1  1  Pow.  157,  n.;  See  Tucker  r.  Kccler,  4  Vern.  161  ;  Butler  y.  Pixige,  7  Met.  40. 


(c)  "  A  mortgagor  resembles  a  person  who  has  executed  a  statute  or 
recognizance.  Whatever  these  persons  do  to  give  value  to  the  property 
under  pledge,  is  done  for  the  benefit  of  the  creditor."  Doe  v.  Giles,  5  Bing. 
427.  One  is  bound  in  a  statute  to  another,  and  sows  the  land.  The  conu- 
see  extends  the  lands,  which  are  delivered  to  him  in  execution.  The  conu- 
see  shall  have  the  corn  sown.  So  in  case  of  a  recognizance.  Btirden's  case, 
2  Leon.  54.  On  the  other  hand  it  is  said,  the  improvements  made  by  a 
mortgagor  in  possession,  in  contemplation  of  law  he  makes  for  himself,  and 
to  enhance  the  general  value  of  the  estate,  not  like  a  tenant  for  its  tempo- 
rary enjoyment.  Winslow  v.  Merchants',  &c.  4  Met.  310.  The  issue  of  a 
mortgaged  sl&ve,  born  after  the  mortgagee's  title  has  become  absolute  at  law, 
and  during  the  possession  of  the  mortgagor,  is  liable  for  the  debt.  Such 
issue  is  compared  by  the  Court,  in  this  respect,  to  the  growing  crop  upon 
land  mortgaged.  Also  to  the  case  of  the  pledge  of  a  flock  of  sheep,  where 
the  young  afterwards  born  become  also  subject  to  the  pledge.  Evans  v. 
Merrlken,  8  Gill  &  J.-  99  ;  Hughes  v.  Graves,  Litt.  317  ;  Story's  Bailm.  200. 
Mr.  Coventry  remarks,  (1  Tow.  161,  n.)  "  when  it  is  said  that  as  between 
mortgagee  and  mortijaKor,  the  mort^asree  is  entitled  to  emblements,  the 
meaning  is,  that  when  the  mortgagor  has  personally  occupied  the  premises, 
and  the  actual  possession  is  afterwards  delivered  to  the  mortgagee  by  the 
sheriff  or  otherwise,  the  growing  crops  which  are  found  upon  the  premises 
become  part  of  the  security,  and  may  be  applied  by  the  mortgagee  to  his 
own  use ;  but  the  principle  does  not  apply  to  the  case  where  the  growing 
crops  have  been  carried  off  by  the  mortgagor  before  the  mortgagee  obtains 
possession,  and  between  the  time  of  his  demand  and  recovery  of  the  posses- 
sion.    Let  it  be  supposed  that  a  mortgagee  recovers  the  possession  by  eject- 

14* 


162  THE  LAW   OF  MORTGAGES.  [CH.  IX. 

He  may  have  a  tenant  under  him,  which  a  lessee  at  will  can- 
not ;  a  demise  by  the  latter  being  in  itself  a  desertion,  which 


ment,  from  a  mortgagor  who  had  personally  occupied  the  property,  after  the 
crops  are  severed  and  sold.  Such  a  mortgagee  might  probably,  if  he  thought 
it  worth  his  while,  bring  an  action  for  the  mesne  profits  from  the  time  of  the 
demise  laid,  but  he  could  not  recover  from  the  mortgagor  any  thing  more 
than  the  same  occupation  rent  which  he  could  have  recovered  against  a  ten- 
ant of  the  mortgagor,  whose  tenancy  had  commenced  subsequently  to  the 
mortgage,  and  without  the  privity  of  the  mortgagee."  In  Hodgson  v.  Gas- 
coignc,  5  B.  &  A.  88,  it  was  held,  that  after  judgment  in  tyectment  at  the 
suit  of  the  landlord,  the  value  of  the  growing  crops,  though  sold  or  seized  in 
execution,  might  be  recovered  in  an  action  for  mesne  profits,  if  the  sale  or 
execution  were  subsequent  to  the  day  of  the  demise  laid  in  the  declaration. 
(See  Toby  v.  Heed,  9  Conn.  225.)  Where  a  mortgagor  leases  the  land,  the 
lessee  has  no  right  to  crops  growing  thereon  at  the  time  of  foreclosure  and 
sale  under  the  mortgage ;  and  if  the  mortgagee  himself  jiurchase  under  such 
sale,  he  may  maintain  trespass  against  the  lessee  for  taking  and  carrying  them 
away.  Lane  v.  King,  8  Wend.  584.  So  the  purchaser  of  mortgaged  prem- 
ises, sold  under  a  statute  foreclosure,  is  entitled  to  crops  sown  by  the  mort- 
gagor, and  growing  on  the  land  at  the  time  of  sale.  Hence,  he  is  not  liable 
in  trover  to  a  purchaser  of  such  crop  at  an  execution  sale  against  the  mort- 
gagor ;  such  purchaser  acquiring  only  the  title  of  the  mortgagor  himself,  and 
the  crop  as  well  as  the  land  being  a  security  for  the  mortgage  debt.  Sliep- 
ard  V.  Philbrick,  2  Dcnio,  174.  A  mortgage  binds  not  only  the  land,  but 
the  crops  while  growing,  and  until  severed  ;  and  a  person  purchasing  the 
premises  under  a  statute  foreclosure  is  entitled  to  the  crops,  in  preference  to 
one  bidding  the  same  off  at  a  sale  subsequently  made,  under  a  decree  in 
bankruptcy  against  the  mortgagor,  by  the  assignee  in  bankruptcy.  Gillett 
V.  Balcom,  G  Barb.  370.  So  if  land  mortgaged  be  sold  under  a  decree  of 
foreclosure,  the  purchaser  will  be  entitled  to  the  crops  growing  at  the  time 
of  the  sale,  in  preference  to  a  person  claiming  under  the  mortgagor,  and 
•whose  claims  originated  subsequently  to  the  mortgage.  Jones  v.  Thomas,  8 
Blackf  428.  In  May,  1822,  a  decree  of  foreclosure  was  rendered  upon  a 
mortgage,  and  the  marshal  ordered,  unless  payment  were  made  in  six  months, 
to  sell  the  property  in  satisfaction  of  the  debt.  The  mortgagor  was  left  in 
possession  till  June,  1823,  when  the  marshal  sold  the  property,  and  the 
mortgagee  became  the  purchaser.  In  the  spring  of  that  year,  the  mort- 
gagor sowed  the  land,  and  the,  mortgagee  after  purchasing  completes  the 
crop.  Before  the  marslial's  sale  Is  reported  and  confirmed,  an  execution  is 
levied  upon  the  crop,  then  gathered,  by  crciiitors  of  the  mortgagor;  and  the 
mortgagee  files  a  bill  for  an  injunction  against  a  sale   under  tlie  execution. 


CH.  IX.]        ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  163 

in  law  amounts  to  a  determination  of  the  will.  He  may- 
assign  or  convey  his  estate,  subject  to  the  mortgage  ;  while  a 
tenant  at  will  has  no  assignable  interest.  A  mortgagor  has 
in  different  cases  been  called  tenant  at  will,  tenant  by  suffer- 
ance,' receiver,  agent,  and  servant  of  the  mortgagee  ;  and 
Lord  Mansfield's  remark  in  Moss  v.  Gallimorej^  (d)  that  he  is 
only  like  a  tenant  at  will,  and  that  nothing  is  more  apt  to 
confound  than  a  simile,  seems  equally  applicable  to  all  the 
other  proximate  relations  above  referred  to  ;  neither  of  which 

iBrowni'.  Cram,  1  N.H.  171  ;  Powsc-         ^  Dougl.   2S2  ;  Miner  v.   Stevens,    1 
ly  V.  Blixckmun,  Cro.  Jac.  659  ;  Cam-     Cush.  485. 
cron  V.  Irwin,  5  Hill,  281  ;  quasi  tenant 
at  sutFeranee,  1  Tow.  174,  n.  E. 


Held,  the  bill  should  be  sustained ;  that  the  general  doctrine  of  emblements 
had  no  application,  but  the  case  turned  solely  upon  the  contract  between  the 
parties,  by  which  the  whole  property  is  made  subject  to  sale  for  payment  of 
the  debt,  whenever  a  decree  is  obtained.  The  Court  remark  :  "  If  the  mort- 
gagor goes  on  and  makes  preparations  for  a  crop,  he  does  it  with  a  full 
knowledge  that  the  land  with  the  crop  is  subject  to  be  sold,  if  the  decree  be 
obtained  before  he  severs  it.  Nor  does  he  lose  any  thing  by  this ;  for  the 
crop  on  the  land  enhances  the  price.  If,  by  this  increase,  the  debt  be  over- 
paid, he  gets  the  overplus  ;  if  not,  still  the  full  value  of  his  labor  goes,  as  he 
had  agreed  it  should  go,  to  the  payment  of  the  debt."  Crews  c.  Pendleton, 
1  Leigh,  297,  305.  In  the  case  of  Keech  v.  Hall,  it  was  intimated,  but  not 
expressly  decided,  that  the  lessee  of  a  mortgitgor,  evicted  by  the  mortgagee, 
would  be  entitled  to  emblements.  But  it  is  said,  (Coote,  393,  394,  Co.  Lit. 
55  6;  Liford's  case,  11  Co.  51,)  that  both  upon  legal  and  equitable  princi- 
ples he  is  not  so  entitled,  being  evicted  by  paramount  title ;  and  although 
the  law  will  not  quoad  actionem  make  a  lessee  who  comes  in  by  title  punish- 
able as  a  trespasser,  yet  quoad  proprielatem  the  regress  of  the  disseizBe 
revests  the  property  as  well  for  the  emblements  as  for  the  freehold  itself,  and 
equally  against  the  feoffee  or  lessee  of  the  disseizor,  as  against  the  disseizor 
himself.  The  rule  and  reason  of  the  law  is,  that  after  the  regress  of  the 
disseizee,  the  law  adjudges  that  the  freehold  has  continued  in  him ;  which 
rule  and  reason  extends  as  well  to  the  emblements  as  to  the  freehold  ;  and 
although  the  act  of  the  disseizor  may  alter  a  man's  action,  yet  his  act  cannot 
take  away  his  action,  property,  or  right.  See  Cassldy  v.  Rhodes,  12  Ohio,  88. 
(f/)  In  the  same  case,  Buller,  J.,  says,  with  reference  to  a  remark  upon  the 
same  subject  in  Keech  v.  Hall :  —  "  Expressions  used  In  particular  cases  are 
to  be  understood  with  relation  to  the  subject-matter  then  before  the  Court." 


164  THE   LAW   OP   MORTGAGES.  [CH.  IX. 

in  all  respects  expresses  the  rights  and  duties  of  the  mort- 
gagor as  occupant  of  the  estate.  For  example,  he  is  not  a 
receiver,  because,  as  stated  by  the  Lord  Chancellor,  in  Wilson 
ex  parted  the  mortgagee  cannot  call  him  to  account  for  past 
rents.  It  has  been  well  said,  however,  by  Judge  Buller,  in 
Birch  V.  Wright,^  that  a  mortgagor  and  mortgagee  are  char- 
acters as  well  known,  and  their  rights,  powers,  and  interests,' 
as  well  settled,  as  any  in  the  law.  The  possession  of  the 
mortgagor  is  the  possession  of  the  mortgagee,  and  as  to  the 
inheritance,  they  have  but  one  title  between  them." 

4.  "With  regard  to  the  points  suggested  by  Judge  Buller, 
Mr.  Coote  remarks  :  ^  —  "  This  view  of  the  question  does  not 
meet  the  difficulty,  for  the  rights,  powers,  and  interests  of 
mortgagor  and  mortgagee,  are  in  many  instances  grounded 
on  their  respective  estates  in  the  land  ;  and,  therefore,  we  are 
still  driven  back  to  the  original  question,  what  are  those 
estates  ?  The  common  law  recognizes  no  such  estate  as  that 
of  mortgagor  or  mortgagee,  independently  of  some  other 
known  estate  or  interest  in  the  land ;  for  the  estates  both  of 
the  mortgagor  and  mortgagee  are  of  a  compound  nature, 
partaking  partly  of  legal  and  partly  of  equitable  rights ;  and 
it  is  difficult  to  perceive  in  what  manner  these  compound 
estates  can  as  such  be  regarded  in  a  court  of  law,  although 
possession  of  the  mortgagor  may  confer  on  him  certain  privi- 
leges under  the  statute  law  and  poor  laws.  In  addition  to 
which  it  may,  under  circumstances,  become  essential  to 
ascertain,  whether  at  common  law  there  is  any,  and  what 
^ivity  of  estate  between  the  parties  ;  for  if  the  mortgagor  in 
possession  may  be  considered  as  tenant  at  will,  or,  under  the 
agreement  for  possession,  as  tenant  for  years,  to  the  mort- 
gagee, there  will  be  sufficient  privity  of  estate  between  them 
to  admit  of  an  enlargement  by  release  alone,  which  will  not 
be  the  case  if  he  is  to  be  considered  as  tenant  at  sufferance, 
or  an  agent,  or  receiver.  So  long  as  the  mortgagor  is  in  pos- 
session of  the  land,  and  the  legal  ownership  is  in  the  mort- 

1  2  Vcs.  &  B.  253.  -  1  T.  li.  383.  ^  Coote,  374. 


CH.  IX.]       ESTATE   OF   THE   MORTGAGOR,   IN  POSSESSlnX.  165 

gagee,  there  must  subsist  a  tenancy  of  some  sort  between 
the  parties ;  or  otherwise  the  mortgagor  must  be  a  trespasser, 
for  the  law  of  England  recognizes  no  possession  independent 
of  a  tenancy,  either  to  the  lord  paramount  or  a  mesne  lord. 
The  mortgagor  in  possession  must  hold  of  some  one,  and  to 
say  that  his  possession  is  that  of  a  mortgagor,  is  in  fact  leav- 
ing the  question  undecided." 

5.  Li  Doe  V.  Maisey,'  Lord  Tenterden  denied  that  the 
mortgagor  is  a  tenant,  or,  if  a  tenant,  any  thing  more  than  a 
tenant  at  sufferance  ;  but  held,  that  he  holds  by  a  peculiar 
tenure,  and  may  be  treated  as  a  tenant  or  trespasser  at  the 
election  of  the  mortgagee. 

6.  It  has  been  said,  however,  that  at  law  the  mortgagor 
may  properly  be  described  as  tenant  of  the  mortgagee.  He 
is  in  possession  of  premises,  whereof  the  legal  title  and  interest 
is  in  another,  and  by  the  permission  and  sufferance  of  the 
latter.  Therefore  a  declaration,  describing  him  as  tenant, 
will  be  sustained  by  producing  a  mortgage  deed.  A  court 
of  law  knows  nothing  about  mortgagor  or  mortgagee.  It 
looks  at  the  legal  tenant.  The  mortgagor  has  actual  pos- 
session, and  the  mortgagee  the  legal  estate,  and  at  law  the 
tenancy  cannot  be  disputed.  More  especially  is  the  mort- 
gagor to  be  regarded  as  a  tenant,  so  far  as  is  necessary  to 
sustain  an  action  by  the  mortgagee  against  a  trespasser.^ 

7.  In  Partridge  v.  Bere,-^  the  declaration  alleged,  that  the 
premises  were  in  the  possession  and  occupation  of  Turner,  as 
tenant  to  the  plaintiff,  the  reversion  belonging  to  him.  It 
appeared  that  Turner,  being  tenant  for  life,  mortgaged  to  the 
plaintiff  for  years,  if  he  should  live  so  long,  and  that  Turner 
had  since  occupied  and  paid  the  interest.  It  was  contended 
that  the  relation  of  landlord  and  tenant  did  not  exist,  and 
therefore  the  declaration  was  not  sustained.  Per  Curiam :  — 
"  Here  the  mortgagor  was  in  actual  possession  of  the  mort- 
gaged premises,  by  sufferance  of  the  mortgagee,  who  has  the 

1  8  B.  &  Cress.  767.  2  -p^r  Sir  Thomas  riumer,  M.  E.,  Chol- 

3  5  B.  A.  604.  mondelcy  r.  Cliuton,  2  Jac.  &  W.  183. 


166  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

lethal  title  vested  in  him.     The  former,  therefore,  is  a  tenant, 
with  hi  the  strictest  definition  of  that  word."  (e) 

8.  Lord  Abinger  says  :  ^  —  "  If  a  mortgagor  be  not  tenant  to 
the  mortgagee,  in  what  relation  does  he  stand  ?  He  is  not  a 
trespasser ;  he  is  not  a  servant,  because  the  mortgagee  is  not 
in  possession ;  the  ordinary  terms  known  to  the  law  are  a 
mortgagee  in  possession  and  out  of  possession.  If  there  be  a 
stipulation  that  he  shall  be  allowed  to  remain  in  possession 
for  a  time,  by  the  very  terms  of  the  deed  he  is  a  tenant  for 
that  time,  and  is  in  possession  for  a  term;  if  he  continues  in 
possession,  and  holds  over,  he  continues  on  the  same  terms 
as  during  that  time." 

9.  In  the  case  of  Groton  v.  Boxborough,  Parsons,  C.  J., 
says :  —  "As between  the  mortgagee  and  mortgagor,  and  those 
claiming  under  them  respectively,  it  must  be  admitted  that 
the  legal  freehold  passed  by  the  mortgage ;  the  mortgagor 
being  a  tenant  at  will  to  the  mortgagee,  who  might  enter  and 
take  possession  at  his  pleasure,  without  being  obliged  bylaw 
to  give  the  mortgagor  notice  to  quit."  ^ 

10.  So  in  a  later  case  in  the  same  State,  it  is  said,  "  a 
mortgagor,  as  against  the  mortgagee,  stands  as  tenant  at 
will."  3 

11.  In  Wilder  v.  Houghton,*  which  was  an  action  by  a 
mortgagee  to  recover  from  an  assignee  of  the  mortgagor  the 
mesne  profits  received  by  him  since  the  commencement  of  a 
suit  to  foreclose,  Parker,  C.  J.,  remarked  :  —  "  The  defendant 

1  Ilitihman  v.  Walton, 4  Uqcs.  &  W.  *  1  Pick.  88-89.  Sne  Morey  v.  Mc- 
41.3.  Guirc,  4  Verm.  327  ;  Liilli-.  Matthews, 

^  G  Mas.s.  .52-.53.  19,  322  ;  riercc  v.  Brown,  24,  1G5. 

■'  Per  Shaw,  C.  J.,  Van  Deusen  v. 
Friiik,  l.'j  Pick.  457. 

(e)  In  Doe  v.  Giles,  5  Bing.  426,  Best,  C  J.,  remarks  upon  the  above 
case  :  "  This  was  not  a  case  between  the  mortgagee  and  the  mortgagor,  in 
which  the  courts  were  called  upon  to  decide  what  are  the  rights  of  tlie  one 
against  the  other.  Tlu;  defendant  in  tliat  case  was  a  wrongdoer,  and  liad, 
therefore,  no  right  to  object  to  the  plaintilf  calling  himself  a  reversioner  as 
long  as  he  permitted  the  mortgagor  to  be  in  possession." 


CH.  IX.]        ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  167 

stands  in  the  place  of  the  mortgagor,  so  that  the%iestion 
submitted  is  the  same  as  if  the  present  action  were  between 
the  mortgagee  and  mortgagor ;  and  in  this  view  it  must  be 
considered  an  experiment,  no  such  action  having  been  hitherto 
brought,  either  in  this  country  or  in  England,  as  far  as  we 
can  discover  from  the  books."  The  mortgagor  "  is,  it  is  true, 
considered  as  a  mere  tenant  at  ivi/I,  and  according  to  our 
practice,  and  to  the  decision  of  the  Court  of  King's  Bench, 
reported  in  Douglas,  21,  he  may  be  ejected  without  any 
notice  to  quit.  Yet  he  is  in  many  respects  the  owner  of  the 
land,  and  when  left  in  possession,  there  must  be  an  implied 
understanding  that  he  is  to  occupy  and  improve  in  the  same 
manner  as  before  the  execution  of  his  mortgage.  It  is  true, 
that  when  the  estate  mortgaged  is  not  full  security  for  the 
debt,  the  profits  would  be  useful  to  the  mortgagee,  as  a  means 
of  payment ;  but  to  obtain  them  he  should  enter  early,  or 
bring  his  writ  of  entry,  which  he  may  do  immediately  upon 
the  execution  of  the  deed ;  if  he  chooses  to  lie  by,  and  suffer 
the  mortgagor  to  keep  possession,  he  consents  that  the  inter- 
mediate profits  may  be  received  by  him,  and  held  without 
account." 

11  a.  It  has  been  held,  however,  in  a  late  case,  in  Massa- 
chusetts, that  a  mortgagee  who  has  entered  for  foreclosure 
cannot  maintain  the  landlord  and  tenant  process  against  the 
mortgagor.  The  Court  remark :  — "Although,  in  a  loose  sense, 
a  mortgagor  in  possession  is  said  to  be  tenant  at  will  of  the 
mortgagee,  yet  he  is  not  within  the  reason  or  the  letter  of  the 
Rev.  Stats,  ch.  104,  §  2.  He  is  not  a  lessee,  or  holding  under 
a  lessee,  or  holding  demised  premises  without  right,  after  the 
determination  of  the  lease.  The  remedies  of  a  mortgagee 
are  altogether  of  a  different  character,  clearly  marked  out  by 
law."  1 

11  b.  So  where  a  mortgagee  recovered  a  conditional  judg- 
ment, and  took  possession  under  an  execution,  but  did  not 
eject  the  mortgagor,  who  agreed  to  quit  peaceably  whenever 

1  Ilastinirs  v.  Pratt,  S  Cusli.  121-123. 


168  THE   LAW   OF   MOKTGAGES.  [CH.  IX. 

the  md'^agee  should  lease  the  premises  ;  held,  a  thh'd  person, 
receiving  a  written  lease  from  the  mortgagee,  could  not,  upon 
the  mortgagor's  refusal  to  quit,  maintain  this  process  against 
him.' 

12.  An  agreement  in  the  mortgage,  that  the  mortgagor 
shall  be  tenant  at  will,  constitutes  a  strict  tenancy  at  will, 
though  an  annual  rent  be  reserved.  And  the  relation  of 
landlord  and  tenant  may  be  created  by  a  clause  to  that  effect, 
though  the  mortgagor  alone  execute  the  deed  ;  and  the  sub- 
sequent occupation  of  the  mortgagor  will  be  held  to  be  under 
the  tenancy,  though  the  receipts  for  half-yearly  payments  of 
rent  are  given  in  the  name  of  interest.^ 

12  a.  A  mortgage  contained  a  power  of  sale,  and  then  a 
proviso  and  covenant,  by  the  mortgagee,  that  no  sale  should 
take  place,  nor  any  means  of  obtaining  possession  of  the 
premises  be  taken,  until  the  expiration  of  tw^elve  calendar 
months  after  written  notice  of  such  intention.  The  mort- 
gagee also  covenanted  for  the  mortgagor's  quiet  enjoyment 
as  his  tenant  at  will,  on  payment  of  a  .yearly  rent  in  lieu  of, 
and  as  interest  upon  the  mortgage-money.  The  mortgagee 
remained  in  possession,  but  no  livery  of  seizin  was  made  to 
the  mortgagor.  Before  suit  commenced,  there  was  a  demand 
of  possession,  but  no  notice  to  quit.  Held,  the  deed  created 
a  tenancy  at  will,  and  the  mortgagee  or  his  assignee  might 
maintain  ejectment.'^ 

12  b.  In  Doe  v.  Cox,^  the  mortgagor  agreed  to  become 
tenant  "  henceforth  at  the  will  and  pleasure  of  the  mortgagee, 
at  the  yearly  rent  of,  &c.,  payable  quarterly."  Held,  a  ten- 
ancy at  will,  not  converted  into  a  tenancy  from  year  to  year 
by  occupation  for  two  years,  and  payment  of  rent.^ 

13.  The  question,  as  to  the  precise  nature  of  the  relation 
between  a  mortgagor  in  possession  and  his  mortgagee,  has 
generally  been  raised,  either  in  connection  with  a  claim  for 

1  J>nnic(l  r.  Clark,  8  Cusli.  20.  ■•  17  L.  J.  3. 

-  Cootc,  'Ml.  •'  See  Freeman  r.  Edwards,  Exch.  17, 

■^  Dixie  V.  Davics,  8  Knj,'.  Law  &  Eq.  L.  J.  2r)8  ;  Ciuipman  v.  Bccciiani.  3  Q. 

.■jlO.  13.  373. 


CH.   IX.]      ESTATE   OF  THE  MORTGAGOR,   IN  POSSESSION.  169 

rent,  or  a  resort  to  legal  process  for  the  purpose  of  ejecting  the 
mortgagor  from  the  premises ;  and  more  especially  with  the 
inquiry,  whether,  like  ordinary  tenants  at  will,  he  is  en- 
titled to  notice  to  quit,  before  bringing  ejectment  against 
him. 

14.  Mr.  Coote  says,  where  there  is  an  agreement  for  the 
mortgagor's  possession  till  default,  and  such  default  occurs, 
and  he  remains  in  possession  without  any  new  agreement ; 
or  if  the  mortgage  contains  no  such  agreement,  he  may  be 
treated  as  a  tenant  at  sufferance  or  a  trespasser,  though  the 
mortgagee  have  received  interest ;  and  wherever  there  is  no 
agreement  for  his  occupation  till  a  certain  period,  his  contin- 
uance in  possession,  if  with  the  mortgagee's  consent,  must 
be  considered  as  a  species  of  tenancy  at  will,  though  without 
two  of  its  chief  incidents ;  namely,  emblements,  and  the 
right  to  a  determination  of  the  will  before  bringing  eject- 
ment. It  must  be  admitted,  however,  to  be  doubtful,  from 
the  cases,  whether  any  tenancy  exists  between  the  parties  ; 
though  their  relative  rights  are  well  ascertained,  and  the 
mortgagee  may,  as  against  strangers,  treat  the  mortgagor  as 
his  tenant.^ 

15.  To  enable  a  mortgagee  to  distrain  on  the  mortgagor 
in  possession,  the  mortgage  should  contain  an  agreement  to 
that  effect,  and  state  a  certain  sum  by  way  of  rent.- 

16.  It  has  been  held  in  recent  cases,  that  the  mortgagee 
may  evict  the  mortgagor,  though  the  mortgage  provides  that 
the  latter  shall  be  tenant  at  a  certain  rent ;  if  there  is  also 
the  usual  power  of  entry  on  default  of  payment.^ 

17.  In  Doe  v.  Tom,'*  it  was  held,  that  where  the  mortgagor 
becomes  tenant  to  the  mortgagee  at  a  rent,  with  the  right  of 
immediate  entry  upon  default;  the  latter  may  eject  him, 
upon  default,  without  demand  of  payment  or  notice  to  quit. 

1  Coote,  377-378.     Seellitchman  r.  3  j)oe  y,   Tom,  4   Q.  B.  Eep.  615; 

Walton,  4   Mees.  &  W.  414  ;   Ing  v.    v.  Olley.  12  Ad.  &  Ell.  481. 

Cromwell,  4  Md.  31.  *  4  Q.  B.  615. 

'^  Coote,  403. 

VOL.   I.  15 


170  THE   LAW   OF  MORTGAGES.  [CH.  IX. 

18.  By  an  indenture  of  mortgage,  the  mortgagor  released 
in  fee  upon  certain  trusts ;  and  demised  other  lands  for 
ninety-nine  years  upon  certain  trusts ;  to  be  void,  on  pay- 
ment of  a  certain  sum  upon  such  a  day.  If  not  paid,  the 
mortgagee,  after  a  month's  notice,  might  take  possession, 
and,  whether  in  or  out  of  possession,  lease  and  sell  the  lands  ; 
and  should  hold  the  rents  and  profits  and  the  proceeds  of 
sale  in  trust  to  pay  the  debt  and  interest,  and  then  in  trust 
for  the  mortgagor.  The  mortgagee  covenanted  not  to  sell  or 
lease  till  after  the  expiration  of  a  month's  written  notice, 
demanding  payment ;  and  that  he  would  at  any  time  before 
sale  reconvey  and  reassign,  upon  payment  of  the  debt  and 
costs.  The  mortgagor  covenanted  to  pay  principal  and  in- 
terest. The  freehold  lands  to  be  the  fund  primarily  liable, 
without  prejudice  to  the  right  of  resorting  to  the  others. 
The  mortgagor  remaining  in  possession,  held,  ejectment 
would  lie  against  him  for  all  the  lands,  without  notice,  after 
the  expiration  of  the  time  mentioned.^ 

19.  In  the  case  of  Doe  v.  Giles,^  it  was  provided  in  a  mort- 
gage deed,  that  if  the  debt  remained  unpaid  for  a  certain 
time,  the  mortgagee  might  enter,  and  if  not  paid  within  thirty 
days  from  the  day  fixed  for  payment,  he  might  proceed  to  a 
sale  of  the  estate  without  the  concurrence  of  the  mortgagor. 
Two  days  after  that  on  which  the  mortgagee  had  a  right  to 
enter  for  non-payment,  and  before  payment  of  any  interest, 
the  mortgagee  brings  ejectment,  without  any  previous  de- 
mand of  possession.  Held,  the  action  was  maintainable. 
Best,  C.  J.,  says,^  (after  the  day  fixed  for  payment,)  "  the 
possession  belongs  to  the  mortgagee.  And  there  is  no  more 
occasion  for  his  requiring  that  the  estate  should  be  delivered 
up  to  him  before  he  brings  an  ejectment,  than  for  a  lessor  to 
demand  possession  on  the  determination  of  a  term.  If  this 
situation  exposes  mortgagors  to  any  hardship^  they  must 
guard  against  it  by  an  alteration  in  the  terms  of  the  mort- 

1  Doc  V.  Day,  2  Ad.  &  Ell.  (N.  S.)        ,  2  5  ujng.  421. 

147.  '  8  5  Bin-r.  427-428. 


CH.  IX.]       ESTATE    OF   THE   MORTGAGOR,    IN   POSSESSION.  171 

gage  deeds.  Mortgagees,  however,  do  not  find  it  to  their 
advantage  to  enter  upon  the  estates,  if  they  can  get  their 
interest  regularly  paid ;  for,  from  the  time  that  they  get  pos- 
session, their  situation  is  far  from  desirable,  from  the  con- 
stant state  of  preparation  that  they  must  be  in  to  account  to 
the  mortgagor,  whenever  he  shall  be  ready  to  discharge  the 
mortgage  debt." 

20.  The  doctrine  upon  this  subject  in  the  United  States 
has  been  somewhat  various. 

21.  In  the  case  of  Rockwell  v.  Bradley,^  in  Connecticut,  it 
was  held,  that  a  mortgagee  may  maintain  ejectment  against 
the  mortgagor,  without  a  demand  or  notice  to  quit.  Three 
judges  out  of  eight,  however,  dissented ;  and  some  of  the 
others  admitted,  that  if  by  the  pleadings,  the  defendant  had 
relied  upon  a  license  from  the  plaintiff,  such  license  might 
well  have  been  inferred  from  the  fact  of  his  being  left  in 
possession,  and  other  circumstances  of  the  case.  The  dis- 
senting judges  founded  their  opinion  upon  the  facts,  that 
the  leading  cases  cited  in  favor  of  the  action,  were  suits 
against  an  assignee  or  lessee  of  the  mortgagor ;  that  by  the 
dictum  of  Lord  Mansfield  in  Keech  v.  Hall,  as  to  the  mort- 
gagor's possessing  the  premises  at  will  "in  the  strictest 
sense,"  nothing  more  is  meant  than  a  tenancy  at  will  in  the 
original  sense,  as  distinguished  from  a  tenancy  from  year  to 
year,  requiring  six  months'  notice,  and  that  a  tenant  at  will 
cannot  be  treated  as  a  disseizor  without  some  notice  to  quit. 
It  was  further  remarked,  that  a  mortgagor  left  in  possession, 
is  a  strict  tenant  at  will  or  at  sufferance,  by  an  implied  agree- 
ment or  license,  unless  the  contrary  appears  ;  that  possession 
of  the  mortgagor  for  fifteen  years  does  not  bar  the  mort- 
gagee's entry  under  the  statute  of  limitations,  and  that  the 
mortgagee  may  transfer  or  devise  his  interest  during  such 
possession ;  all  showing  it  not  to  be  adverse. 

22.  In  the  subsequent  case  of  Wakeman  v.  Banks,^  the 
same  decision  was  made  by  the  Court,  with  a  similar  dissent 

1  2  Conn.  1.  20  Conn.  445. 


172  THE   LAAV   OF   MORTGAGES.  [CH.  IX. 

on  the  part  of  several  judges.  It  was  further  distinctly  held, 
that  the  execution  of  a  mortgage,  and  the  subsequent  pos- 
session of  the  mortgagor,  are  not  facts  from  which  it  is  com- 
petent for  a  jury  to  infer  a  license  to  remain  in  possession. 
Swift,  C.  J.,  points  out  the  following  characteristics  of  a 
mortgagor,  which  do  not  apply  to  a  tenant  at  will.  He  is 
not  liable  to  an  action  of  waste ;  he  may  dispose  of  the 
whole  or  a  part  of  the  estate ;  it  descends  to  his  heirs  ;  he  is 
considered  the  owner,  in  all  respects,  except  for  payment  of 
the  debt.  The  right  to  bring  ejectment  without  notice  to 
quit,  is  compatible  with  the  nature  of  the  estate ;  for  it  is 
only  a  security  for  a  debt ;  and  it  is  a  well-known  principle 
that  a  suit  may  be  brought  against  a  debtor,  without  notice. 

23.  In  Vermont,  (/)  the  mortgagee  may  enter  after  breach 
of  condition.^     In  North  Carolina,  he  may  maintain  eject- 

1  Wilson  V.  Hooper,  13  Verm.  653. 


(/)  In  Vermont,  the  following  points  have  been  recently  settled  :  Where 
the  mortgagee  suffers  the  mortgagor  to  remain  in  possession  after  conditioa 
broken,  the  latter  is  tenant  by  sufferance  merely,  and  may  be  evicted  by 
the  mortgagee,  without  notice  to  quit.     Stedmanv.  Gasset,  18  Vt.  346. 

And  though  the  mortgagee  has  given  him  a  lease  for  years,  yet,  at  the 
expiration  of  the  term,  his  former  liabilities  revive  and  continue,  and  he 
will  be  held  tenant  by  sufferance  merely.  lb. 

And  if,  after  the  expiration  of  the  term,  he  lease  by  parol  to  a  third  per- 
son, such  third  jjerson  can  stand  in  no  better  condition  than  the  mort- 
gagor, as  respects  the  mortgagee.  Jb. 

Though  there  may  have  been  actual  eviction,  by  the  mortgagee,  of  the 
tenant  of  the  mortgagor,  where  the  tenancy  was  created  subsequent  to  the 
mortgage  ;  yet,  if  the  mortgagee  has  given  notice  to  the  tenant  of  his 
mortgage,  and  demanded  the  rent,  and  the  tenant  has  continued  in  posses- 
sion, not  objecting  to  or  repudiating  the  demand,  he  is  not  liable  to  the 
mortgagor  for  the  rent.  ]b. 

-If  the  mortgagor,  having,  after  condition  broken,  taken  from  the  mort- 
gagee a  lease  for  years,  convey  to  a  third  person  during  such  tenancy,  the 
mortgagee  may  still  consider  him,  at  the  end  of  his  term,  to  be  in  possession 
as  mortgagor,  and  not  as  tenant  from  year  to  year,  and  evict  him  at  any 
time  without  notice.  lb. 


CH.    IX.]      ESTATE   OP   THE   MORTGAGOR,   IN   POSSESSION.  173 

merit  without  demand  or  notice.'  In  New  Hampshire,  the 
mortgagee  may  treat  any  one  found  in  possession,  whose 
title  is  not  good  against  him,  as  a  wrong-doer  and  disseizor, 
at  his  election.^ 

24.  In  New  York  it  has  been  held,  that  the  mortgagee 
cannot  maintain  ejectment  against  the  mortgagor,  without 
a  previous  notice  to  quit.  So  it  has  been  held  in  a  later 
case  in  the  same  State,  that  where  a  mortgage  is  made  to 
secure  a  debt,  and  the  mortgagor  left  in  possession,  there  is 
an  implied  agreement  that  he  shall  continue  to  hold  posses- 
sion. His  possession  being  lawful,  he  cannot  be  treated  as 
a  trespasser,  and  sued  in  ejectment  without  notice.  But  it 
is  otherwise  with  a  purchaser  from  the  mortgagor,  because 
the  sale  itself  is  an  act  of  disloyalty,  and  the  mortgagor  a 
disseizor.  Notice  is  not  requisite,  without  privity  of  con- 
tract or  estate.  But  such  privity  exists  between  an  assignee 
of  the  mortgage  and  the  mortgagor.'^ 

25.  The  Court  remark  upon  this  subject  as  follows  :  — 
"  I  do  not  think  it  necessary  to  go  through  the  English  cases, 
which  are  not  sufficiently  uniform  to  be  of  much  service, 
to  ascertain  whether  a  mortgagor  be  a  tenant  at  sufferance, 
or  at  will,  or  from  year  to  year.  It  is  sufficient  for  my  pur- 
pose, that  he  occupies  with  the  mortgagee's  consent,  and 
that  by  a  perfect  understanding  between  them  he  uses  the 
premises  as  his  own.  JMost  commonly  his  interest  is  much 
greater  than  that  of  the  mortgagee,  and  in  practice,  we  know 
that  no  tenant  at  will,  for  years,  or  even  for  life,  exercises 
such  unlimited  dominion  over  land,  as  the  mortgagor.  It 
comports  then  neither  with  reason  nor  feeling,  to  permit  him 
to  be  put  to  the  expense  and  vexation  of  an  ejectment,  with- 
out a  previous  notice  to  quit.     This  is  no  hardship  on  the 

1  Fuller  V.  Wadsworth,  2  Ired.  263.  Polk  v.  Henderson,  9  Yerg.  318  ;  Bee- 

-  Wheeler  v.  Bates,  1  i'ost.  460.  ley  v.  Wallace,  16  S.  &  R.  24.5  ;  Knaub 

3  Jackson  (-■.  Hopkins,  18  Johns.  488;  v.   Essick,    2  Watts,   282:    Dexter   v. 

Lane  v.  King,  8  Wend.  584;  Thunder  Phillips,  1  Sumn.  116;  Bower  f.  Crane, 

V.  Belcher,  3  E.  449.     Sec  "Welch  v.  1  N.  H.  169  ;   Chapman  v.  Armistead, 

Adams,    1    Met.   494;  Estcs  v.  Cook,  4    Munf.   382;   Jackson  v.  Myers,    11 

22   Pick.   295  ;    l^rench   v.  i'uUer,   23,  Wend.  537. 
304 ;    Emerson   v.  Thompson,  2,  473 ; 

15* 


174  THE  LAW   OF   MORTGAGES.  [CH.  IX. 

mortgagee,  while  a  contrary  practice  may  be  much  abused, 
in  a  country  where  so  many  thousand  estates  are  held  in 
this  way.  Without  any  nice  disquisition  of  the  rights  and 
duties  of  particular  tenants,  (which  may  perplex,  but  cannot 
elucidate  the  question,)  I  am  ready  to  say,  that  no  person 
who  holds  land  by  another's  consent,  for  an  indefinite  period, 
ought  ever  to  be  evicted  by  ejectment,  at  the  suit  of  such 
party,  without  a  previous  notice  to  quit.  This  should 
especially  be  required  in  all  cases  of  mortgages,  because  the 
mortgagor  may  not  only  surrender  the  possession  of  the 
land,  but  may  protect  himself  against  an  action  by  payment 
of  the  money  due.  The  case  of  Keech  v.  Hall,  in  Douglas, 
21,  is  not  an  authority  here,  and  it  is  enough  to  say,  that  we 
may  be  permitted  to  regulate  a  mere  matter  of  practice,  even 
in  opposition  to  what  may,  under  other  circumstances,  be 
deemed  a  better  course  in  Westminster  Hall.  If  a  notice  be 
requisite,  to  be  reasonable,  it  should  be  delivered  six  calendar 
months  previous  to  the  service  of  a  declaration."  ^ 

26.  The  question  above  considered,  as  to  the  mortgagee's 
right  of  possession,  and  the  exact  nature  of  his  title,  has 
often  arisen,  in  consequence  of  the  mortgagor's  making  a 
lease  of  the  premises  to  some  third  person,  or  allowing  such 
person  to  occupy  them  as  his  tenant.  The  general  rule 
upon  this  subject  is,  that  a  mortgagor  in  possession  cannot 
make  a  lease,  binding  upon  the  mortgagee.  This  principle 
seems  to  be  well  established  in  England,  and  is  a  fortiori  to 
be  considered  in  force  in  the  United  States,  where  mort- 
gages, as  well  as  other  conveyances  of  the  freehold,  are  uni- 
formly registered  or  recorded,  and  therefore  a  subsequent 
lessee  is  always  chargeable  with  express  or  implied  notice  of 
the  mortgagee's  title.  Without  registration,  a  mortgage 
would  be  invalid,  as  well  against  a  lease,  as  any  other  sub- 
sequent transfer,  (g-) 

1  Per  Livingston,  J.,  Jackson  v.  Lauglihead,  2  Johns.  75.     Tlirce  other  justices 
conmrrcfl.     One  dissented. 

((/)  The  lease  of  a  mortgagor  is  held  to  be  good  as  to  all  but  the  mort- 
gagee ;  and  he  only  can  avoid  it.     McC;dl  v.  Lenox,  9  S.  &  R.  308  ;  Hutch- 


CH.   IX.]      ESTATE   OF  THE   MORTGAGOE,   IN   POSSESSION.  175 

27.  The  leading  case  upon  this  subject  is  that  of  Keech  I'. 
Hall,^  in  which  Lord  Mansfield  gave  the  following  opinion:  — 
"  This  is  an  ejectment  brought  for  s^varehouse  in  the  city, 
by  a  mortgagee,  against  a  lessee,  under  a  lease  in  writing  for 
seven  years,  made  after  the  date  of  the  mortgage,  by  the 
mortgagor,  who  had  continued  in  possession.  The  lease  was 
at  a  rack-rent.  The  mortgagee  had  no  notice  of  the  lease, 
nor  the  lessee  any  notice  of  the  mortgage.  The  question  is, 
whether,  by  the  agreement  understood  between  mortgagors 
and  mortgagees,  which  is,  that  the  latter  shall  receive  interest, 
and  the  former  keep  possession,  the  mortgagee  has  given  an 
implied  authority  to  the  mortgagor  to  let  from  year  to  year, 
at  a  rack-rent ;  or  whether  he  may  not  treat  the  defendant 
as  a  trespasser,  disseizor,  and  WTongdoer.  No  case  has 
been  cited,  where  this  question  has  been  agitated,  much  less 
decided.  The  only  case  at  all  like  the  present,  is  one  that 
was  tried  before  me  upon  the  home  circuit  (Belchier  v.  Col- 
lins) ;  but  there,  the  mortgagee  was  privy  to  the  lease,  and 
afterwards,  by  a  knavish  trick,  wanted  to  turn  the  tenant  out. 
The  idea,  that  the  question  may  be  more  proper  for  a  court 
of  equity,  goes  upon  a  mistake.  It  emphatically  belongs  to 
a  court  of  law,  in  opposition  to  a  court  of  equity  ;  for  a  les- 
see at  a  rack-rent  is  a  purchaser  for  a  valuable  consideration, 
and  in  every  case  between  purchasers  for  a  valuable  consid- 
eration, a  court  of  equity  must  follow,  not  lead,  the  law. 
On  fuU  consideration,  we   are  all  clearly  of  opinion,  that 

1  Dougl.  21  ;  Fitchburg,  &c.  v.  Melven,  15  Mass.  270. 


inson  v.  Dearing,  20  Ala.  798.  If  the  mortgagor  lease  with  the  mortgagee's 
consent,  and  the  lessee  enter,  claiming  under  no  other  title  ;  he  is  not  a  dis- 
seizor, but,  on  payment  and  acceptance  of  rent,  a  tenant  at  will.  So  also  is 
the  mortgagor,  if  he  reenter  after  the  lease  expires.  Powsely  r.  Blackman, 
Cro.  Jac.  659.  In  Bacon  v.  Bowdoin,  (22  Pick.  401,)  it  was  held,  that  if  a 
mortgagor  lease  for  years,  the  lessee  may  redeem ;  more  especially  since  the 
provision  of  the  Revised  Statutes,  ch.  107,  s.  13,  that  any  person  lawfully 
claimins;  or  holding  under  the  mortgagor  mav  redeem. 


176  THE   LAW   OP   MORTGAGES.  [CH.    IX. 

there  is  no  inference  of  fraud  or  consent  against  the  mort- 
gagee, to  prevent  him  from  considering  the  lessee  as  a 
\\Tongdoer.  If  the  mcjj^gagee  had  encouraged  the  tenant  to 
lay  out  money,  he  could  not  maintain  this  action  ;  but  here 
the  question  turns  upon  the  agreement  between  the  mort- 
gagor and  mortgagee ;  when  the  mortgagor  is  left  in  pos- 
session, the  true  inference  to  be  drawn  is  an  agreement  that 
he  shall  possess  the  premises  at  will  in  the  strictest  sense, 
and  therefore  no  notice  is  ever  given  him  to  quit,  and  he  is 
not  even  entitled  to  reap  the  crop,  as  other  tenants  at  will 
are,  because  all  is  liable  to  the  debt ;  on  payment  of  which 
the  mortgagee's  title  ceases.  The  mortgagor  has  no  power, 
express  or  implied,  to  let  leases,  not  subject  to  every  circum- 
stance of  the  mortgage.  Whoever  wants  to  be  secure,  when 
he  takes  a  lease,  should  inquire  after  and  examine  the  title- 
deeds.  It  was  said  at  the  bar,  that  if  the  plaintiff  can  re- 
cover, he  wiU  also  be  entitled  to  the  mesne  profits  from  the 
tenant,  in  an  action  of  trespass,  which  would  be  a  manifest 
hardship  and  injustice,  as  the  tenant  would  then  pay  the 
rent  twice.  I  give  no  opinion  on  that  point ;  but  there  may 
be  a  distinction,  for  the  mortgagor  may  be  considered  as 
receiving  the  rents  in  order  to  pay  the  interest,  by  an  implied 
authority  from  the  mortgagee,  till  he  determine  his  will." 

28.  This  case  is  cited  by  Lord  EUenborough  in  Thunder 
V.  Belcher,^  as  "  decisive  against  the  claim  of  the  tenant  to 
notice  to  quit."  It  might  be  otherwise,  if  the  mortgagee 
had  received  rent.  In  such  case,  although  the  lease  would 
be  invalid,  the  occupant  would  become  tenant  from  year  to 
year.  "  But  a  mortgagor  is  no  more  than  a  tenant  at  suf- 
ferance, not  entitled  to  notice  to  quit ;  and  one  tenant  at 
sufferance  cannot  make  another.  The  defendant  never  had 
any  possession  under  the  mortgagee  from  whence  any  ten- 
ancy could  be  inferred,  and  therefore  was  not  entitled,  to  any 
notice.  He  could  not  be  said  to  have  any  possession  under 
the  mortgagee,  if  the  mortgagor  had  no  authority  to  let." 

1  3  E.  450. 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,   IN  POSSESSION.  177 

29.  In  Evans  v.  Elliot,^  Lord  Denman  remarked  upon  this 
case  :  —  "  The  well-known  case  of  Keech,  lessee  of  Warne  v. 
Hall,  1  Doug.  21,  is  generally  considered  as  an  authority  the 
other  way  ;  but  Lord  Mansfield  was  not  there  laying  down 
the  law  upon  the  subject,  so  much  as  explaining  his  own 
view  of.  the  manner  in  which  mortgagor  and  mortgagee 
commonly  regard  one  another  in  fact.  I  must  add  that 
some  misconception  may  have  arisen  on  this  subject,  from 
the  care  the  courts  have  employed  in  correcting  an  acknowl- 
edged error  of  the  same  great  Judge,  the  error  of  supposing 
that  the  right  to  recover  in  ejectment  could  depend  on  any 
thing  but  the  legal  right  of  possession.  This  most  frequently 
follows  the  legal  estate  ;  though  Lord  Mansfield  was  dis- 
posed in  some  cases  to  transfer  it  to  him  in  whom  no  more 
than  an  equitable  title  was  vested.  A  strong  assertion  of 
the  right  of  the  mortgagee  in  such  a  case  against  the  mort- 
gagor may  have  led  to  the  notion  that,  as  against  the  for- 
mer, not  only  the  latter,  but  all  claiming  under  him,  must  be 
wrongdoers,  without  adverting  to  the  possibility  of  the 
right  of  possession  being  recognized  in  another  by  the  per- 
son enjoying  the  legal  estate." 

30.  In  conformity  with  the  doctrine  of  Keech  v.  Hall,  it 
is  said,  "  all  those  who  come  in  under  the  mortgagor  are, 
strictly  speaking,  trespassers."  ^  So,  in  another  case,-^  "  if  a 
person  who  has  an  estate,  borrows  money  on  it  upon  mort- 
gage, and  becomes  the  mortgagor  of  it,  and  this  mortgagor 
afterwards  grants  a  lease  of  the  property  to  a  tenant,  we  will 
suppose  for  twenty-one  years,  that  lease,  being  made  after 
the  mortgage,  cannot  be  set  up  by  the  tenant  to  prevent  the 
person  who  has  lent  the  money  (whom  we  call  mortgagee) 
from  recovering  the  possession  of  the  property,  and  the  mort- 
gagee may  put  the  tenant  out  of  possession  by  an  ejectment, 
and  the  only  remedy  the  tenant  has  for  being  thus  put  out 
of  possession  is  against  the  mortgagor." 

1  9  Ad.  &  El.  342.  3  pg^  Patteson,  J.,  Doe  v.  Bucknell, 

2  Per  Littledale,  J.,  Pope  v.  Biggs,    8  Carr.  &  P.  567. 
9  B.  &  C.  254. 


178  THE   LAW  OF   MORTGAGES.  [CH.  IX. 

80  a.  So  the  tenant  at  will  of  a  mortgagor,  who,  on  the 
mortgagee's  entry,  refuses  to  pay  him  rent  or  quit,  is  liable 
to  the  mortgagee  in  trespass  for  the  rents  subsequently  ac- 
cruing.^ 

31.  So  it  has  been  held,  that  where  a  mortgagee  enters 
under  a  judgment,  the  land  being  in  possession  of  a  tenant 
under  a  lease  subsequent  to  the  mortgage,  there  is  no  privity 
between  them,  and  the  mortgagee  may  treat  the  occupant  as 
a  disseizor  or  a  tenant,  at  his  election.^ 

32.  In  Jackson  v.  Fuller,^  the  rule  established  in  the  case 
of  Jackson  v.  Laughhead  (p.  174)  was  held  not  applicable  to 
a  suit  brought  by  the  mortgagee  against  a  purchaser  from  the 
mortgagor.  The  Court  say,  —  all  privity  between  the  parties 
is  now  gone.  The  pm'chaser  is  a  stranger  to  the  contract  by 
which  the  mortgage  was  created.  He  cannot  be  considered 
in  the  light  of  a  tenant.  He  knows  nothing  of  the  original 
debt,  and  is  under  no  personal  obligation  to  pay  it.  He 
holds  possession  of  the  pledge,  but  not,  as  in  the  other  case, 
"by  a  perfect  understanding  between  him  and  the  mort- 
gagee." He  claims  exclusively  by  a  title  from  the  mortgagor. 
"  If  notice  be  required  in  this  case,  it  must  be  so  in  every 
case  of  ejectment  upon  mortgage,  even  though  the  land  has 
been  conveyed  in  fee  from  hand  to  hand,  until  all  knowledge 
of  any  existing  incumbrance  is  totally  lost." 

33.  Where  one  in  possession  under  the  mortgagor  refuses 
possession  to  the  mortgagee  upon  his  entry  for  breach  of 
condition ;  the  latter  may  maintain  an  action  against  him 
for  mesne  profits,  though  the  entry  be  insufficient  for  fore- 
closure.* Wilde,  J.,  says,^  —  the  plaintiffs  might  elect  to 
consider  the  defendants  as  trespassers,  after  their  refusal  to 
quit,  as  they  might  consider  them  as  disseizors,  and  in  a 
writ  of  entry  evict  them.  And  if  the  defendants  refuse  to 
quit,  and  their  continued  occupation  against  the  will  of  the 

1  Hill  c.  Jordan,  30  Maine,  367.  '"^  4  Johns.  21.'3.    Sec  Jaekson  v.  Stack.- 

-  Miissachusctts,    &c.    v.    Wilson,  10     house,  1  Cow.  12G. 
Met.  127.  ■*  Northampton,  &c.  v.  Ames,  8  Met  1. 

5  Ibid.  7. 


en.  IX,]      ESTATE   OF   THE   MORTGAGOR,   IX   POSSESSION.  179 

plaintiffs  would  amount  to  an  actual  disseisin ;  still  the  plain- 
tiffs by  their  subsequent  entry  became  lawfully  reseized,  and 
had  a  right  to  maintain  trespass  for  the  mesne  profits,  with- 
out resorting  to  a  writ  of  entry. 

34.  So,  where  the  mortgagee  himself  purchases  under  a 
sale  for  foreclosure,  after  the  decree,  he  may  treat  an  occu- 
pant under  the  mortgagor  as  a  tenant  or  trespasser.  He  is 
entitled  to  the  rents,  from  a  demand  of  possession,  or  the 
making  of  a  conveyance.^ 

35.  But  in  the  case  of  Dickenson  v.  Jackson,^  where  eject- 
ment was  brought  by  a  mortgagee  against  a  purchaser  from 
the  mortgagor,  without  notice  to  quit,  and  the  demise  was 
laid  in  the  declaration  prior  to  any  default  of  payment ;  it 
was  held,  that  the  action  could  not  be  maintained.  Although 
the  defendant,  having  taken  an  absolute  conveyance,  not 
acknowledging  the  mortgage,  was  not  entitled  to  notice,  the 
sale  itself  being  an  act  of  disloyalty;  the  right  of  entry  of 
the  mortgagee  did  not  accrue  till  a  default  in  payment  and 
a  termination  of  the  tenancy,  neither  of  which  had  happened 
at  the  time  of  the  demise  as  laid  in  the  declaration. 

36.  Upon  the  question,  how  far  the  mortgagee  may  be  de- 
barred by  his  own  conduct  in  reference  to  a  lessee  of  the 
mortgagor,  from  treating  him  as  a  trespasser  or  occupant 
without  right,  there  is  no  little  confusion  in  the  cases.  The 
general  principle  is,  that  although  a  lease  made  by  the  mort- 
gagor is  invalid  against  the  mortgagee,  if  he  chooses  so  to 
consider  it ;  yet  he  may,  at  his  election,  ratify  such  lease, 
and  adopt  the  lessee  as  his  tenant ;  thereby  substituting  a 
liability  on  the  part  of  the  lessee  to  himself  for  rent,  in  place 

.  of  the  former  one  to  the  mortgagor. 

37.  It  is  perfectly  well  settled,  that  the  mortgage,  of  itself, 
and  independent  of  some  specific  action  of  the  mortgagee, 
directed  to  that  end,  will  not  authorize  him  to  claim  the  rents 
and  profits.  Thus  it  is  held,  that  where  the  mortgagee  has 
not  taken  a  specific  pledge  of  the  rents  and  profits,  he  has  no 

1  Castleman  v.  Belt,  2  B.  Monr.  158.  -  G  Cow.  147. 


180  THE   LAW   OP  MORTGAGES.  [CH.  IX. 

equitable  claim  to  them,  as  against  the  assignee  of  a  chattel 
morfo-ao-e  from  the  tenant  to  the  mortgagor,  to  secure  the 
rent.  If  the  mortgagee  obtains  an  order  upon  the  tenant, 
to  attorn  to  a  receiver  appointed  in  a  foreclosure  suit,  he  can 
claim  only  immediate  possession  of  the  premises,  as  secinrity. 
If  the  tenant  has  gone  into  possession  pendente  lite,  the  order 
may  be,  that  he  yield  possession  or  pay  rent  from  that  time 
to  a  receiver.  But  he  has  no  right,  in  any  event,  to  an  order, 
especially  as  against  the  equitable  rights  of  others,  which  wiU 
in  effect  vest  him  with  the  possession  nunc  pro  tunc,  as  of  a 
time  anterior  to  the  application.^ 

38.  Mr.  Greenleaf  remarks,^  that  if  the  mortgagee  does  not 
choose  to  enter  and  receive  the  rents,  the  tenant  may  pay 
rent  to  the  mortgagor  ;  but  after  notice  by  the  mortgagee  of 
his  title,  and  a  claim  of  rent,  the  rent  must  be  paid  to  him. 
So  it  has  been  held,  that  where  a  mortgage  is  duly  recorded, 
a  tenant  cannot  lawfully  pay  a  year's  rent  in  advance  to  the 
mortgagor ;  and,  if  he  does  so,  upon  a  bill  for  foreclosure  by 
the  mortgagee,  the  Court  may  compel  him  to  pay  it  again  to 
a  receiver."^  After  notice,  the  mortgagee  has  been  held  enti- 
tled to  claim  the  rents  and  profits  due  at  the  time  of  such 
notice,  as  well  as  those  which  accrue  subsequently.* 

89.  In  Doe  v.  Hales,^  it  was  held,  that  after  demand  of,  or 
distress  for,  rent  in  arrear,  eo  nomine,  by  the  mortgagee,  the 
mortgagor's  tenant  could  not  be  treated  as  a  trespasser. 

40.  So  in  Evans  v.  Elliot,'^  Lord  Denman  maintained,  that 
by  his  own  acts  the  mortgagee  might  be  estopped  from  treat- 
ing a  lessee  of  the  mortgagor  as  a  trespasser  ;  and  suggested, 
•  that  a  jury  might  infer  recognition  of  the  lessee's  title  by  the 
mortgagee,  from  his  knowingly  allowing  the  mortgagor  to 
remain  the  apparent  owner,  and  deal  with  the  property  as 

1  Zcitcr  V.   BowiTi£in,    6   Barb.    133;  ^  7  Biii}^.  322.     See  Doc  ?'.  Lewis,  13 

Weulncr  v.  Foster.  2  renn.  23;  Myers     M.  &  W.  241  ;  v.  Kensington, 

V.  Wiiite,  1  Uawlc.  3."jr).  8  Q.  B.  42!) ;  Jacob  v.  Milforii,  1  Jac.  & 

2  2  Groenl.  Cruise,  107,n.;  ace.  Smitli  W.  G29 ;  VaiUincc  v.  Savage,  7  Bing. 
V.  Taylor,  9  Ala.  033 ;  Babcock  v.  Ken-  T^Q.^  ;  Megginson  v.  Harper,  4  Tynvli. 
nc(lv,"l  Verm.  4.57.  100 ;  Kogers  v.  Humphreys,  4  Ad.  &  El. 

"'I'icnsbaw  v.  Wells,  9  Ilumiih.  .508.       313  ;  Carris  v.  MeClary,  5  N.  II.  530. 
■»  Hutchinson  I'.  Deaning,  20  Ala.  798.         «  9  Ad.  &  Ell.  342. 


en.  IX.]      ESTATE   OP  THE  MORTGAGOR,   IN  POSSESSION.  181 

his  own.  His  language  is  as  follows.^  It  has  been  argued, 
"that  the  mortgagee  may  always  treat  the  mortgagor  and 
all  who  claim  under  him  as  trespassers  ;  and  that,  for  that 
reason,  the  mortgagor's  lessee  cannot  become  the  tenant  of 
the  mortgagee.  My  learned  brothers  are,  I  believe,  disposed 
to  assent  to  this  proposition,  which,  generally  speaking,  is 
certainly  not  to  be  questioned.  But,  for  my  own  part,  I 
wish  to  guard  myself  against  being  understood  to  adopt  it  as 
universal.  The  contrary  must,  I  think,  be  admitted,  —  that  a 
mortgagee  may  so  bind  himself  by  his  own  conduct  as  to 
be  precluded  from  treating  the  mortgagor's  lessee  as  a  tres- 
passer ;  what  conduct  might  amount  to  a  recognition,  seems 
to  me  to  be  rather  matter  of  evidence  than  of  law.  I  am  by 
no  means  prepared  to  admit,  that  a  jury  would  not  be  war- 
ranted in  inferring  a  recognition  of  the  tenant's  right  to  hold, 
from  the  mere  circumstance  of  the  mortgagee's  knowingly 
permitting  the  mortgagor  to  continue  the  apparent  owner  of 
the  premises,  as  before  the  mortgage,  and  to  lease  them  out, 
exactly  as  if  his  property  in  them  continued." 

41.  In  Brown  v.  Story ,^  a  mortgagor  leased  for  years,  and 
an  assignee  of  the  mortgage  (having  notice  of  such  lease) 
gave  notice  to  the  tenant  of  the  mortgage,  and  required  him 
to  pay  to  the  assignee  all  rent  due  and  to  become  due  for 
the  premises.  Held,  from  these  facts  a  jury  might  infer  a 
contract  of  tenancy  for  a  year  between  the  assignee  and  the 
tenant. 

42.  In  the  case  of  Pope  v.  Biggs,^  the  assignees  of  a  bank- 
rupt mortgagor  brought  an  action  for  use  and  occupation 
against  his  lessee,  under  a  lease  made  after  the  mortgage. 
It  was  held,  that  the  defendant  might  show  in  defence  a 
payment  made  to  the  mortgagee  after  notice  and  demand. 

43.  So  as  to  an  avowry  for  rent,  the  tenant  may  plead 
payment  of  it  to  a  mortgagee,  under  a  mortgage  prior  to  the 


1  9  Ad.  &  Ell.  354,  355.  3  9  g^  C_  245  :  Doe  v.  Simpson,  3 

2  1  Scott,  (New)  9.  Kerr,  194. 

VOL.    I.  16 


182  THE  LAW   OF   MORTGAGES.  [CH.  IX. 

lease,  who  had  demanded  payment  from  the  tenant,  and 
threatened  to  put  "the  law  in  force"  in  case  of  refusal. 
Such  plea  is  in  substance  a  plea  of  payment,  not  a  nil  habuit, 
or  eviction.  The  defect  of  the  lessor's  title  is  shown,  only  as 
a  medium  of  proof,  that  the  payment  was  for  his  benefit, 
and  by  reason  of  his  default.  The  plea,  far  from  denying 
the  mortgagor's  title  to  grant  the  lease,  recognizes  his  title 
throughout,  and  admits  the  money  to  have  been  rent  due 
and  in  arrear  to  him,  and  proceeds  to  show  how  it  has  been 
satisfied.^ 

44.  A  mortgagor  having  leased  the  land  by  parol,  a 
second  mortgagee  entered  and  notified  the  tenant,  that  he 
should  thenceforth  claim  rent  of  him,  to  which  the  tenant  did 
not  object.  The  mortgagee  subsequently  recovered  the' land 
from  the  tenant  by  a  writ  of  entry.  Held,  the  mortgagee 
might  maintain  assumpsit  for  the  rent,  from  his  entry  to  the 
time  of  suing  out  the  writ  of  entry,  by  which  act  he  elected 
to  consider  the  defendant  as  a  disseizor ;  and  that  the  prior 
mortgage  was  no  bar  to  the  suit,  the  prior  mortgagee  having 
never  entered  or  claimed  rent.^ 

45.  Morton,  being  an  owner  in  fee,  mortgaged  to  Marriott, 
hut  remained  in  possession,  and  afterwards  demised  part  for 
a  term  to  Barton,  who  also  entered ;  after  which  Morton 
mortgaged  to  Higginbotham ;  who  subsequently  received 
rent  from  Barton,  and  demised  the  other  part  to  Bullock. 
Afterwards  Barton  and  Bullock,  upon  notice  from  Marriott, 
paid  rent  to  him.  Higginbotham  then  brings  ejectment, 
after  notice  to  quit,  against  Barton  and  Bullock.  Held,  the 
defendants  might  both  set  up  in  defence  the  first  mortgage 
to  Marriott,  his  notice  to  them,  and  their  ])ayment  of  rent  to 
him ;  and  that  Morton,  being  only  a  mortgagor  in  posses- 
sion, at  the  time  of  the  demise  to  Bullock,  did  not  affect 
Morton's  right  to  confer  upon  him  by  demise  a  legal  title  to 
possession,  but  Bullock  might  show,  that  Morton  had  since 
been  treated  as  a  trespasser  by  the  mortgagee,  so  as  to  de- 

1  Johnson  v.  Jones,  9  Ad.  &  Ell.  800.  ^  Q.^^r^g  y.  McClary,  T)  N.  II.  529. 


CH.  IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  183 

termine  the  right  of  Morton  ;  and  that  the  mortgagee's  no- 
tice to  the  tenant  to  pay  him  the  rent,  might,  if  received  in 
evidence,  tend  to  show,  that  the  mortgagee  treated  the  mort- 
gagor as  a  trespasser.^  Lord  Denman  says,^  the  mortgagee 
"  was  entitled  to  the  profits  of  the  land,  and  the  defendants 
were  right  in  paying  him  those  profits,  whether  strictly  called 
rent  or  not.  He  might  have  ejected  them,  and  afterwards 
let  to  them ;  and  it  seems  absm*d  to  require  him  to  go 
through  the  form  of  an  ejectment,  in  order  to  put  them  into 
the  very  position  in  which  they  now  stand." 

46.  In  the  same  case,^  the  same  Judge  remarks  :  —  "  It  is 
c(mceded  on  all  hands,  that  where  a  lease  is  made  by  the 
mortgagor  subsequently  to  the  mortgage,  and  the  mortgagee 
afterwards  requires  the  rent  to  be  paid  to  him,  and  it  is  paid 
accordingly,  the  relation  of  landlord  and  tenant  may  arise 
between  the  parties.  Or,  at  all  events,  the  mortgagee  may 
be  entitled  to  sue  the  tenant  for  use  and  occupation." 

47.  Bayley,  J.,  says,^  in  case  of  a  lease  made  after  the 
mortgage,  "  the  tenant  may  consider  the  mortgagor  his 
landlord  so  long  as  the  mortgagee  allows  the  mortgagor  to 
continue  in  possession  and  receive  the  rents ;  and  payment 
of  the  rents  by  the  tenant  to  the  mortgagor,  without  any 
notice  of  the  mortgage,  is  a  valid  payment.  But  the  mort- 
gagee, by  giving  notice  of  the  mortgage  to  the  tenant,  may 
thereby  make  him  his  tenant,  and  entitle  himself  to  receive 
the  rents.  It  is  undoubtedly  a  well-established  rule,  that  a 
lessee  cannot  dispute  the  title  of  his  lessor  at  the  time  of  the 
lease,  but  he  is  at  full  liberty  to  show  that  the  lessor's  title 
has  been  put  an  end  to.'  There  is  another  rule  of  law, 
namely,  that  the  mortgagor  cannot  dispute  the  title  of  the 
mortgagee." 

48.  So  it  is  held,  that  if  a  mortgagee,  in  case  of  a  lease 
for  years  by  the  mortgagor,  instead  of  turning  the  tenant  out 
of  possession,  consents  to  take  him  as  his  tenant,  the  mort- 
# 

1  Doe  V.  Warburton,  11  Ad.  &  Ell.  3  ib.  p.  315. 

307.  *  Pope  I'.  Biggs,  9  B.  &  C.  251. 

-lb.  pp.  315,  31G. 


184  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

gagee  will  not  thereby  set  up  the  lease,  but  will  make  the 
tenant  hi^^  tenant  from  year  to  year  only.^ 

49.  On  the  other  hand,  in  Partington  v.  Woodcock,^  Pat- 
teson,  J.,  says  : — "  I  never  could  see  how  notice  could  make 
the  mortgagor's  tenant  tenant  to  the  mortgagee  at  the  former 
rent.  There  might  indeed  be  a  new  tenancy  created  at  the 
old  rent,  where  such  notice  was  given,  and  the  rent  paid 
accordingly."  Littledale,  J.,  says,  "  if  the  lease  was  made 
subsequently  to  the  mortgage,  I  see  no  remedy  the  mort- 
gagee could  have  against  the  tenant,  on  non-payment  of  the 
rent,  but  to  bring  ejectment." 

50.  So  it  is  held,  that  to  an  ejectment  upon  a  mortgage 
against  a  tenant  of  the  m.ortgagor,  it  is  no  defence,  that  the 
plaintiff  had  received  interest  thereupon,  to  a  time  subsequent 
to  the  demise  laid  in  the  declaration  ;  such  receipt  not 
amounting  to  a  recognition  that  the  mortgagor  or  his  tenant 
was  up  to  that  time  in  lawful  possession.'^  Lord  Tenter- 
den,  C.  J.,  distinguishes  this  case  from  Doe  v.  Hales,  (7  Bing. 
322,)  where  the  defendant  proved,  that  subsequently  to  the 
day  laid  in  the  declaration,  he  was  in  possession,  as  a  tenant 
of  the  mortgagor,  and  the  plaintiff  called  on  him,  demanded 
interest  on  the  mortgage,  and  received  it  eo  nomine  as  in- 
terest, requiring  the  defendant  to  pay  it  instead  of  rent  to  the 
mortgagor.  Littledale,  J.,  Questions  the  correctness  of  that 
decision.  Parke,  J.,  says  "  Doe  v.  Hales  only  shows,  that 
where  the  mortgagee  recognizes  a  party  as  being  in  lawful 
possession  of  the  premises  at  a  given  time,  it  is  not  compe- 
tent to  him  to  say  afterwards  that  at  that  time  he  was  a  tres- 
passer. Here  the  lessor  of  the  plaintiff  never  recognized  the 
defendant  as  being  in  lawful  possession."  ^ 

51.  In  Doe  v.  Olley,''  it  was  held,  that  notwithstanding  a 
distress  for  rent  by  the  mortgagee,  he  might  treat  the  mort- 
gagor as  a  trespasser,  upon  a  subsequent  default. 

1  Doc  V.  BiK-knclI,  8  Carr.  &  V.  5GG.  *  Doc  v.    CadwallaJer,  2  B.  &  Al. 

2  6  Ad.  &  Ell.  69.''},  6'JG.  47G,  477.  ♦ 
•'Doc  V.   Cadwalhuler,  2  B.  &  Ad.         &  12  Ad.  &  Ell.  481. 

473;  V.  Goodier,   IG  L.  J.  i^  B. 

436,  N.  S. 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,   IN  POSSESSION.  185 

52.  In  Doe  v.  Goodier/  it  was  held,  that  the  reservation 
of  a  power  of  distress,  in  case  the  interest  should  be  in  arrear, 
in  like  manner  as  for  rent  reserved  on  the  lease,  or  even  a 
distress  under  such  power,  is  not  of  itself  sufficient  to  create 
a  tenancy,  or  prevent  an  ejectment  without  notice,  but  is  a 
mere  collateral  power,  and  the  demise  in  ejectment  may  still 
be  laid  on  a  day  prior  to  the  distress. 

53.  In  the  case  of  Evans  v.  Elliot,^  already  referred  to,  it 
was  held,  that  by  notifying  the  lessee  of  the  mortgage,  and 
that  principal  and  interest  are  due,  and  requiring  payment  of 
rent,  the  mortgagee  does  not  make  the  lessee  his  tenant,  nor 
gain  the  right  of  distraining  for  subsequent  rent  under  the 
lease,  although  the  tenant  actually  pay  him  rent  at  times 
and  in  sums  corresponding  to  those  in  the  lease,  and  by 
letter  recognize  him  as  his  landlord. 

o4.  Li  a  recent  case  it  has  been  held,  that  the  tenancy 
under  the  mortgagor  is  not  affected  by  an  authority  from  the 
mortgagor  to  the  mortgagee  -to  receive  the  rents,  though 
perhaps  such  authority  may  be  irrevocable,  and  justify  all 
payments  made  under  it  while  the  debt  continues.^ 

54  a.  A  mortgagor  having  made  a  lease,  and  rent  being 
due,  the  mortgagee  gave  notice  of  the  .mortgage  to  the  ten- 
ant, and  claimed  the  rent.  Held,  in  an  action  for  use  and 
occupation  by  the  mortgagor,  such  claim  and  notice,  with- 
out payment,  furnished  no  defence  to  the  suit.'* 

54  b.  The  defendants,  a  railway  company,  laid  their  rails 
upon  certain  lands  mortgaged  to  the  plaintiff,  and,  being 
called  upon  by  him  for  compensation,  negotiated  with  him 
on  the  subject.  The  plaintiff"  had  never  been  in  possession, 
but  gave  notice  of  the  mortgage  to  the  defendants,  and  then 
brought  an  action  for  use  and  occupation.  Held,  "  there  was 
evidence  for  the  jury  of  the  defendants'  having  held  the  land 


1  16  L.  J.  Q.  B.  435,  N.  S.  3  Wheeler  v.  Branscomb,  5  Q.  B.  373. 

2  9  Ad.  &  Ell.  342.  *  Milton  v.  Duun,  7  Eiig.  Law  &  Eq. 

406. 

16* 


186  THE  LAW   OF  MORTGAGES.  [CH.  IX. 

on  the  terms  of  paying  for  it,  and  that  the  plaintiff,  being  a 
mortgagee  out  of  possession,  and  never  having  entered  pre- 
viously to  the  trespass,  nor  having  a  judgment  by  default  or 
a  verdict  in  ejectment,  could  not  maintain  an  action  of  tres- 
pass against  the  defendants."  ^ 

55.  It  is  said  by  the  Court  in  Massachusetts,^  "  whether 
mere  notice  to  tenants  by  a  mortgagee  to  pay  rent  to  him,  or 
any  other  act  short  of  an  actual  or  constructive  entry,  will 
defeat  the  right  of  the  mortgagor  to  take  the  rents  and  profits 
to  his  own  use,  may  be  a  question." 

55  a.  In  Welch  v.  Adams,^  the  holder  of  a  mortgage 
upon  leased  premises  made  open  and  peaceable  entry  for 
the  purpose  of  foreclosing  and  receiving  the  rents  and 
profits.  The  defendant,  the  tenant,  consented  to  the  entry, 
but  the  plaintiff,  an  assignee  of  the  mortgagor,  was  not 
present.  The  holder  of  the  mortgage  required  the  de- 
fendant to  pay  him  rent  from  the  time  of  entry,  and  he 
agreed  to  do  so,  and  actually  paid  it,  taking  a  bond  of  in- 
demnity. The  plaintiff  required  the  defendant  to  pay  him, 
forbade  him  to  pay  the  holder  of  the  mortgage,  and  also 
notified  the  latter,  that  he  would  not  consent  to  his  having 
possession  and  taking  the  rent.  Held,  the  action,  being  for 
use  and  occupation  after  such  entry,  would  not  lie.  (h) 

55  b.  Annual  mortgage  and  subsequent  lease  by  indent- 
ure, for  five  years,  reserving  rent,  and  an  assignment  of  the 
lease  to  the  mortgagee.  Between  five  and  six  months  after 
the  lease,  the  mortgagee  entered  to  foreclose,  and  the  lessee 
attorned  to  him,  and  afterwards  accounted  with  him  for  the 
first  year's  rent.     The  tenant  brought  an  action  against  the 

1  Turner  v.  Camcrons,  &c.,  2  Eng.  10  Met.  114.  Sec  Smith  v.  Shepard, 
Law  &  Kq.  .342.  l.'j  Tifk.  147. 

'^  Per  Sliaw,  C.  J.,  ImcIcI   v.    Swan,        "  1  Met.  494. 


(/i)  A  mortgagor  may  recover  the  rents  from  one  who  has  wrongfully  re- 
ceived them,  the  mortgagee  having  made  no  claim  to  them,  although  the 
law-day  be  past.     Branch,  &c.  v.  Fry,  23  Ala.  770. 


CH.  IX.]      ESTATE   OF  THE   MORTGAGOR,   IN  POSSESSION.  187 

assignee,  on  a  quantum  meruit  count,  for  a  portion  of  the  first 
year's  rent.     Held,  the  action  could  not  be  maintained.^ 

56.  In  Maine  it  is  held,  that  a  notice  from  a  mortgagee  to 
an  ag^t  of  the  mortgagor,  employed  to  collect  rents  from 
tenants  of  the  estate,  to  pay  the  rents,  when  collected,  only 
to  himself,  is  a  termination  of  the  mortgagor's  tenancy  at 
will,  and  makes  the  agent  a  trustee  for  the  mortgagee,  as  to 
all  rents  subsequently  accruing.? 

57.  In  New  York  it  has  been  held,  that  where  a  mort- 
gagor leases  the  mortgaged  premises,  a  foreclosure  and  sale 
extinguishes  the  lessee's  title.  And  though  he  be  not  evicted, 
if  he  attorn  to  the  purchaser,  the  right  of  the  lessor  to  the 
future  rents  is  extinguished.  So,  if  the  tenant,  on  being  re- 
quested to  attorn,  yield  up  possession,  this  is  equivalent  to 
an  eviction,  and  will  be  a  good  defence  to  an  action  by  the 
lessor  for  subsequent  rent.  And  though  the  lessor  assign 
the  lease  to  the  purchaser,  and  consent  that  the  rent  be  paid 
him  for  the  rest  of  the  term,  the  tenant  may  still  quit,  and 
refuse  to  pay  the  subsequent  rents.^ 

58.  It  has  been  held  in  Kentucky,  that  a  mortgagee  of 
a  reversion  may  sue  the  tenant  of  the  mortgagor  for  use  and 
occupation,  unless  he  has  paid  his  rent  before  notice  of  the 
mortgage.  But  where  a  mortgagor  in  possession  makes  a 
lease,  and  the  lessee  is  suffered  to  remain  in  possession,  the 
mortgagee  cannot  maintain  an  action  for  rent.  And  the 
purchaser  of"  an  equity  of  redemption  does  not  acquire,  as 
incident  thereto,  any  legal  right  to  rent  reserved  by  the  ven- 
dor, and  accruing  after  the  purchase ;  the  doctrine  that  rent 
goes  with  the  reversion  being  a  technical  one,  and  applicable 
only  to  the  legal  title.  But  a  mortgagee,  purchasing  under 
a  decree  of  foreclosure,  may,  after  the  date  of  the  decree, 
treat  one  in  possession  under  the  mortgagor  as  tenant  or 
trespasser,  and-Jrom  the  time  of  demanding  possession  or 


1  Knowles  v.  Mavnard.  13  Met.  352.  See  .Tones  r.'  Clarke,  20  -Johns.   121 ; 

2  Cioshy  V.  Harlow,  8  Sliepl.  499.  Magill  v.  Hinsdale,  6  Conn.  4G9. 

3  Simcrs   v.    Saltus,   3    Denio,   214. 


188  THE   LAW   OF   MORTGAGES.  fcH.  IX. 

obtaining  conveyance,  is  entitled  to  the  accruing  rents.'  So, 
it  is  held  in  New  York,  that  where  a  mortgage  is  made  by 
one  who  has  previously  leased  the  land,  the  mortgagee  may 
distrain  for  rent.  But  where  a  lease  is  made  by  th#mort- 
gagor  after  the  mortgage,  the  mortgagee  can  neither  distrain 
nor  sue  for  rent,  there  being  no  privity  of  contract  or  estate 
between  him  and  the  tenant.  Spencer,  Ch.  J,,  remarks,^ 
there  is  no  adjudged  case  wjiich  countenances  the  contrary 
doctrine.  The  mere  legal  ownership  of  the  land  cannot 
authorize  either  an  action  or  a  distress  for  the  rent.  The 
mortgagor  holds,  it  is  true,  upon  an  implied  consent  and 
agreement,  existing  between  him  and  the  mortgagee  ;  and  is 
therefore  entitled  to  notice  to  quit,  before  he  can  be  proceeded 
against  as  a  trespasser  ;  but  it  would  be  going  too  far  to  say 
that  he  might  make  leases,  which  the  mortgagee  might  or 
might  not  affirm,  at  his  election.  The  relation  between  them 
does  not  imply  a  right  on  the  part  of  the  mortgagor  to  lease. 
In  Alabama,  the  mortgagee,  upon  condition  broken,  is  enti- 
tled to  rent  in  arrear,  after  notice.^ 

59.  The  plaintiffs,  having  a  mortgage  of  a  farm  occupied 
by  the  defendant  under  a  lease  from  Robinson,  subsequent 
to  the  mortgage  ;  recovered  judgment  on  the  mortgage,  and 
on  the  first  day  of  January,  1843,  took  possession  under  an 
execution  thereupon.  The  defendant  remained  in  posses- 
sion, without  any  new  contract,  and  on  the  30th  of  March, 
1843,  the  plaintiffs  first  demanded  rent.  The  plaintiffs  bring 
assumpsit  to  recover  the  rent  from  October  1,  1842,  to  April 
1,  1843,  the  defendant  having,  after  the  1st  of  April,  paid  it 
to  the  order  of  Robinson,  drawn  January  21,  1843.  It  did 
not  appear  at  what  periods  the  rent  was  payable.  Held,  the 
plaintiffs  should  recover  the  rent  that  accrued  after,  but  not 
what  accrued  before,  their  entry.* 

60.  A  mortgagor  in  possession  having  coiyeyed  the  land, 
the  grantee  admitted  a  third  person  as  his  tenant.     After- 

1  Castloman  v.  Belt,  2  B.  Monr.  157.  ■*  Cokcr  v.  Pcarsall,  6  Ala.  .542. 

-  iMcKirciicr   r.   llawlcv,    16   Johns.         ■'Massachusetts,   &c.   v.   Wilson,    10 
2'J2;  Watts  v.  CoOin,  11  .Johns.  4115.         Met.  12G. 


CH.  IX.]     ESTATE   OF  THE   MOETGAGOR,  IN  POSSESSION.  189 

wards,  the  grantee's  interest  was  sold  on  execution.  Imme- 
diately upon  the  sale  and  before  any  deed  was  given,  the 
tenant  attorned  to  the  execution  purchaser,  and  agi-eed  to 
occupy  at  a  certain  rent.  The  mortgagee  afterwards  noti- 
fied the  tenant  to  pay  rent  to  him,  and  the  tenant,  receiving 
an  indemnity,  did  so.  The  execution  purchaser  then  brings 
this  action  against  the  tenant  for  the  rent.  Held,  the  facts 
above  stated  furnished  no  defence  to  the  suit.  Where  the 
mortgage  is  subsequent  to  the  lease,  the  rent  passes  as  inci- 
dent to  the  reversion  which  is  mortgaged,  and  the  mortgagor 
is  estopped  by  his  own  deed  to  claim  it  afterwards.  But,  in 
this  case,  the  mortgage  being  made  first,  the  defendant  was 
never  tenant  to  the  mortgagee,  nor  even  to  the  mortgagor. 
The  Court  further  remarked,  that  by  a  statutory  provision  of 
the  State,  a  tenant  shall  not  attorn  to  a  stranger.  Therefore 
the  tenant  could  lawfully  attorn  only  to  the  grantee  or  a  pur- 
chaser from  him,  and  the  execution  purchaser  stood  in  the 
same  position  as  one  taking  a  direct  conveyance ;  while  the 
mortgagee  was  to  be  regarded  as  a  stranger.  And  although 
mortgagees  are  excepted  from  the  general  statutory  provision 
against  attornment,  the  effect  of  this  exception  is  merely  to 
render  attornment  to  a  mortgagee  valid  or  invalid,  according 
to  the  circumstances  of  each  case,  but  not  to  authorize  at- 
tornment to  any  one  but  the  landlord's  grantee.' 

61.  Upon  the  subject  above^onsidered,  Mr.  Coote  remarks 
as  follows  ;  —  "A  purchaser  of  the  equity  of  redemption  from 
the  mortgagor,  or  a  lessee  who  defends  for  the  mortgagor's 
benefit,  cannot  set  up  a  legal  title  in  a  third  person,  para- 
mount to  that  of  the  mortgagor,  or  a  prior  legal  mortgage 
from  the  mortgagor  to  a  third  person,  in  order  to  defend  his 
own  possession.  But  the  rule  does  not  apply,  when  a  sub- 
sequent purchaser  or  mortgagee,  for  valuable  consideration, 
without  notice  of  the  prior  mortgage,  obtains  a  valid  legal 
conveyance  from  the  mortgagor,  who  has,  in  the  mean  time, 
become  clothed  with  the  legal  estate,  or  gets  in  an  outstand- 

1  Souders  v.  Vansickle,  3  IIalst.314. 


190  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

ing  legal  estate ;  though  it  would  seem  that  such  party- 
might  be  bound  by  estoppel,  if  the  mortgage  contained  a 
positive  recital  of  the  mortgagor's  seizin.  Of  course,  a  les- 
see, claiming  under  the  mortgagor  subsequently  to  the  mort- 
gage, may  show  an  eviction  by  paramount  title  in  defence 
to  an  ejectment  by  the  mortgagee  ;  or  if  the  lease  be  prior  to 
the  mortgage,  it  would  seem  that  he  may  either  make  this 
defence,  or,  without  proving  eviction,  show  that,  by  reason 
of  the  paramount  title,  nothing  passed  by  the  mortgage ; 
and  notice  from  the  legal  owner  to  the  tenant  to  pay  the 
rent  to  him  is,  it  seems,  evidence  of  eviction." ' 

62.  The  same  writer  further  remarks  :  ^  — "A  new  tenancy 
may  be  created  between  the  mortgagee  and  the  tenant  by 
payment  and  acceptance  of  rent,  as  rent,  or  even  by  the 
acquiescence  of  the  tenant  in  the  notice  to  pay  the  mortga- 
gee ;  which  will,  it  seems,  be  a  tenancy  from  year  to  year 
upon  the  terms  of  the  lease ;  although  mere  notice  by  the 
mortgagee,  to  pay  the  rents  to  him  without  attornment  or 
assent  on  the  part  of  the  tenant,  is  insufficient  to  create  a 
new  tenancy.  It  seems,  such  notice  may  be  treated  as  an 
eviction." 

63.  The  cases  above  referred  to  relate  to  tenancies  created 
by  the  mortgagor  after  the  mortgage.  Different  considera- 
tions apply,  and  different  rules  have  been  adopted,  where  the 
owner  of  land,  which  has  bee»  already  leased,  gives  a  mort- 
gage of  it.  Such  mortgage  is  of  course  a  mortgage  merely 
of  the  reversion,  and,  in  general,  rent  is  incident  to,  and 
passes  with,  the  reversion.^  (i)  The  rule  upon  this  subject 
has  been  thus  stated. 

1  Cootc,  390;  Doc  v.  Clifton,  4  Ad.     .307;  hut  sec  Gouldswortli  r.  Knights, 
&  Kll.  81.3 ;  Doe  v.  Stone,  3  C.  B.  Rep.     11  Mecs.  &  W.  337. 
176;    l?if,'lit  V.   Ikicluu'll,  2  B.   &  Ad.        -  Cootc,  402. 

278  ;    Goodtitle   v.   Morf,'an.    1    T.   K.         ^  Sec  Mnnsony  v.  U.  S ,  &c.,  4  Ala. 
755;  Doc   v.   Barton,    11    Ad.    &   Ell.     N.   8.    746-748;    Kawson   v.    Eicke,   7 

Ad.  &  Ell.  451. 


((')   If  a  lease  is  made  before  llie  mortgajxe,  tlie  mortgagee  is  assignee  of 
the  reversion,  and,  in  that  character,  entitled  to  all  the  rents  payable  by  the 


CH.  IX.]     ESTATE   OF  THE  MORTGAGOR,  IN  POSSESSION.  191 

64.  When  an  estate  previously  leased  is  mortga^i,  the 
rents  and  profits  pass  as  incident  to  the  reversion  ;  and  if,  at 
the  time  possession  is  taken,  there  is  rent  accruing  upon  a 
quarter  not  expired,  the  rent  passes  as  incident,  and  the 
mortgagee  may  sue  for  it.  But  the  rent  which  has  accrued 
prior  to  the  entry  does  not  thus  pass,  being  a  mere  chose  in 
agilion.i 

65.  Mr.  Greenleaf  says,^  rent  in  arrear  at  the  time  of  a 
mortgage  made  by  the  lessor  does  not  pass  to  the  mort- 
gagee. 

66.  ]Vlr.  Coote  says,^  if  the  lease  is  prior  to  the  mortgage, 
or  made  under  a  power  in  the  mortgage,  the  notice  of  the 
mortgagee  to  the  tenant  operates  as  an  attornment,  relating 
back  to  the  time  of  the  grant ;  and  all  rents  due  at  the  time 
of  such  notice  belong  to  the  mortgagee,  who  may  distrain 
for  them,  or,  if  the  tenant  holds  from  year  to  year  or  under 
an  agreement,  may  recover  them  in  an  action  for  use  and 
occupation  ;  even  though  the  mortgagor  has,  after  the  mort- 
gage, altered  the  property  and  raised  the  rent.  But  a  mort- 
gagee taking  possession,  or  a  receiver  appointed  on  his  be- 
half, is  not  entitled  to  the  crops  previously  severed  and  con- 
signed by  the  mortgagor,  though  not  actually  received  by  the 
consignee. 

67.  In  Pope  v.  Biggs,*  Littledale,  J.,  says:  —  "The  mort- 
gagee cannot  indeed  distrain  or  maintain  any  action  for  the 
by-gone  rents  which  accrued  due  before  he  gave  notice  to 
the  tenants,  because  before  that  time  there  was  no  privity 
between  him  and  the  tenants.     But  the  notice  by  force  of 

'Massachusetts,   &c.   v.  Wilson,    10  ^  Coote,  402. 

Met.  127.  *  9  B.  &  C.  254,  255. 

2  2  Grecnl.  Cruise,  108. 

lease ;  except  those  paid  by  the  lessee  before  notice  of  the  assignment. 
But  when  the  lease  is  subsequent  to  the  mortgage,  the  mortgagee  is  not 
bound  by  it.  There  is  no  privity  between,  him  and  the  lessee ;  and,  as  he 
could  not  recover  rent  of  the  mortgagor,  it  has  been  doubted  whether  he 
could  recover  it  of  the  lessee,  who  stands  in  the*  mortgagor's  place.  Fitch- 
burg,  &c.  V.  Melven,  15  Mass.  209,  270. 


192  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

StatWAnne,  ch.  16,  operates  as  an  attornment  of  the  ten- 
ants, and  when  they  attorn  they  become  tenants  to  the  mort- 
gagee, and,  at  common  law,  that  attornment  would  have 
related  back  to  the  grant,  so  as  to  entitle  the  mortgagee  to 
all  the  rents  from  the  time  when  the  deed  was  executed.  A 
new  tenancy  is  then  created ;  as  between  mortgagor  and 
mortgagee,  the  latter  becomes  entitled  to  all  the  by-ggpe 
rents.  All  those  who  come  in  under  the  mortgagor  are 
strictly  speaking  trespassers.  In  ejectment,  the  plaintiff 
might  declare  on  the  demise  of  the  mortgagee,  and  the  ac- 
cruing rents,  being  in  the  nature  of  mesne  profits,  might  be 
recovered  by  the  mortgagee  from  the  day  when  he  gave  no- 
tice of  the  mortgage  to  the  tenants.  And  if  the  mortgagee 
might,  after  bringing  an  ejectment,  recover  those  rents  in  an 
action  for  mesne  profits,  it  is  perfectly  clear  that  he  is  enti- 
tled, at  law,  to  receive  them  without  bringing  any  ejectment. 
As  to  the  accruing  rents,  there  has  been  that  which  is  equiv- 
alent to  an  eviction  by  title  paramount  before  those  rents 
became  due,  and  that  will  be  an  answer  to  any  action  for 
rent  by  the  mortgagor." 

67  a.  In  Moss  v.  Gallimore,^  (said  to  be  the  leading  case 
upon  this  subject,^)  certain  leased  premises  were  conveyed 
by  mortgage.  The  lessee  remained  in  possession  some 
years,  paying  rent  to  the  mortgagor,  when  the  mortgagor 
became  bankrupt,  owing  upon  the  mortgage  more  than  the 
sum  then  due  as  rent.  The  assignee  demanded  the  rent, 
and  then  the  mortgagee  ;  and  the  latter  distrained  for  it. 
Held,  the  distress  was  valid.  Lord  Mansfield  remarks  upon 
the  danger  of  the  lessee's  colluding  with  the  mortgagor,  in 
such  case,  against  the  mortgagee,  who  has  no  right  to  eject 
the  former,  he  having  the  prior  title.  "  Of  late  years,  the 
courts  have  gone  so  far  as  to  permit  the  mortgagee  to  pro- 
ceed by  ejectment,  if  he  has  given  notice  to  the  tenant  that 
he  does  not  intend  to  disturb  his  possession,  but  only  re- 
quires the  rent  to  be  paid  to  him,  and  not  the  mortgagor. 

1  Dou-1.  279.  2  1  Smith's  L.  C.  314,  n. 


CH.  IX.]     ESTATE   OF   THE   MORTGAGOR,  IN   POSSESSION.  193 

This,  however,  is  entangled  with  difficulties."  Attornment 
is  unnecessary,  no  rent  having  been  paid  before  notice. 
"But,  having  notice  from  the  assignees  and  also  from  the 
mortgagee,  he  dares  to  prefer  the  former,  or  keeps  both  par- 
ties at  arm's  length.  The  mortgagor  receives  the  rent  by  ti 
tacit  agreement  with  the  mortgagee,  but  the  mortgagee  may 
put  an  end  to  this  agreement  when  he  pleases."  Ashurst, 
J.,  says  :  —  "Where  the  mortgagor  is  himself  the  occupier  — 
he  may  be  considered  as  tenant  at  will ;  but  he  cannot  be  so 
considered  if  there  is  an  under-tenant ;  for  there  can  be  no 
such  thing  as  an  under-tenant  to  a  tenant  at  will.  The 
mortgagor  is  only  a  receiver  of  rent  for  the  mortgagee  ;  who 
may,  at  any  time,  countermand  the  implied  authority." 

68.  The  execution  purchaser  of  an  equity  of  redemption 
has  been  held  entitled  to  the  same  privileges,  in  regard  to 
tenancy  and  rent,  previous  to  any  actual  or  constructive  dis- 
possession by  the  mortgagee,  as  the  mortgagor  or  his  lessee. 
Thus,  a  mortgagor  leased  for  a  certain  term,  and  verbally 
agreed  with  the  mortgagee,  that  the  mortgagor  should  have 
possession  and  control,  and  receive  the  rent  of  the  estate. 
The  mortgagee  afterwards  brought  an  action  for  foreclosure 
against  the  mortgagor,  recovered  judgment,  and  took  out  an 
execution,  but  J;he  latter  was  never  delivered  to  an  officer, 
the  tenant  still  remaining  in  possession  under  the  lease. 
The  plaintiff,  a  creditor  of  the  mortgagor,  levies  an  execution 
upon  the  equity  of  redemption,  himself  purchases  it,  and 
verbally  lets  the  estate  to  the  defendant,  who  enters  at  the 
expiration  of  the  former  lease,  and  occupies  till  dispossessed 
by  an  execution  in  favor  of  the  mortgagee  against  the  plain- 
tiff, in  a  writ  of  entry.  The  plaintifi"  brings  an  action  to  re- 
cover rent  of  the  defendant  from  the  time  he  took  possession, 
till  dispossessed  by  the  mortgagee.'  Shaw,  C.  J.,  remarked,^ 
that  the  plaintiff,  having  purchased  the  equity,  stood  in  place 
of  the  mortgagor,  with  the  right  of  taking  the  rents  and 
profits  to  his  own  use,  till  the  entry  or  some  equivalent  act 

1  Field  I'.  Swan,  10  Met.  112.  2  jj.  pp.  n4,  115. 

VOL.    I.  17 


194  THE  LAW   OF  MORTGAGES.  [CH.  IX. 

of  the  mortgagee ;  which  did  not  exist  in  this  case,  but,  on 
the  contrary,  were  expressly  waived  by  the  action  of  the 
mortgagee  brought  for  the  purpose  of  foreclosing,  and  aver- 
ring him  to  be  disseized  and  out  of  possession. 

69.  From  the  preceding  remarks,  relative  to  the  legal  rights 
and  obligations  connected  with  the  leasing  of  a  mortgaged 
estate,  it  may  be  inferred  that  great  caution  is  desirable,  in 
the  mode  of  creating  a  tenancy,  in  order  to  avoid  any  conflict 
as  to  the  title  or  the  payment  of  rent.  Mr.  Coventry  says,' 
"  both  the  mortgagor  and  mortgagee  should  join  in  the  de- 
mise. The  mortgagee  should  '  demise,  lease,  and  to  farm 
let,'  and  the  mortgagor  '  grant,  demise,  lease,  ratify,  and  con- 
firm ; '  and  the  rent  should  be  reserved  to  the  mortgagee  so 
long  as  the  premises  shall  remain  in  mortgage ;  and  to  the 
mortgagor  for  the  residue  (if  any)  of  the  term.  The  whole 
legal  estate  is  in  the  mortgagee,  he  therefore  should  be  the 
leasing  party.  The  simple  assent  of  the  mortgagee  to  the 
mortgagor's  granting  leases  would  be  wholly  inoperative  for 
the  purpose  of  transferring  an  interest  to  the  lessee.  Nor 
will  a  lease,  even  made  by  a  mortgagee  (without  the  mort- 
gagor) and  before  foreclosure,  although  he  be  in  possession 
under  the  mortgage,  be  good  in  equity  against  the  mortgagor, 
unless  it  be  of  necessity  and  to  avoid  an  apparent  loss." 

70.  So  Professor  Greenleaf  says,  that  "  to  the  creation  of  a 
valid  lease  of  an  estate  in  mortgage,  the  concurrence  of  the 
mortgagee  and  mortgagor  is  essential.  The  mortgagee, 
having  the  legal  estate,  should  demise,  and  the  mortgagor 
also  should  demise  and  confirm.  The  rent  may  be  reserved 
generally,  and  the  covenants  from  the  lessee  should  be  made 
with  the  mortgagee,  and  also  with  the  mortgagor,  severally. 
Sometimes  a  power  is  reserved  in  the  mortgage  for  the  mort- 
gagor to  appoint  by  way  of  demise,  in  which  case  the  lease 
takes  effect  as  an  appointment  of  the  use  to  the  lessee  for  the 
term :  in  this  instance,  the  reservation  may  be  general,  and 
the  covenants  should  be  entered  into  with  the  mortgagee  and 

1  1  row.  177,  n.   Sec  Barney  v.  Adams,  2  Tynvh.  289  ;  Doe  v.  Goldsmith,  lb.  710. 


CH.  IX.]       ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  195 

also  with  the  mortgagor  severally,  as  where  the  lease  oper- 
ates as  a  common  law  demise.  If  the  mortgage  is  of  lease- 
holds, of  course  the  mortgagor  cannot,  under  a  power  to  lease 
in  the  mortgage  deed,  make  an  under-lease  of  the  legal  estate 
without  the  concurrence  of  the  mortgagee.' 

70  a.  Where  mortgagor  and  mortgagee  join  in  a  lease, 
containing  an  express  covenant  by  the  former  for  quiet  enjoy- 
ment, no  covenant  from  both  can  be  implied.^ 

70  b.  Lease  from  mortgagor  and  mortgagee,  reciting  the 
mortgage ;  the  reddendum  to  the  mortgagee,  his  executors, 
&c.,  during  the  mortgage,  afterwards  to  the  mortgagor  or  his 
executors,  &c.  The  lessee  covenants  to  and  with  the  mort- 
gagee, and  also  to  and  with  the  mortgagor,  to  pay  the  rent 
"  on  the  several  days  and  times,  and  in  manner  as  the  same 
was  reserved  and  made  payable."    Held,  a  several  covenant.^ 

71.  A  mortgagee  of  leaseholds  joined  with  the  mortgagor  in 
leasing  a  part  of  the  property  for  the  residue  of  the  term  at  a  cer- 
tain rent,  payable  to  the  mortgagor,  his  executors,  administra- 
tors, and  assigns.  The  lease  contained  a  provision  for  reentry,  in 
case  of  non-payment  of  rent,  to  the  mortgagor,  his  executors, 
&c. ;  also  a  declaration  that  nothing  therein  contained  should 
defeat,  impeach,  or  determine  the  estate  of  the  mortgagee  under 
his  mortgage,  so  far  as  the  same  affected  the  entirety  of  the 
premises.  After  execution  of  the  deed,  the  mortgagor  became 
bankrupt.  Held,  the  lessee  was  entitled  to  the  premises,  free 
of  the  mortgage  ;  but  the  mortgagee,  and  not  the  mortgagor's 
assignee,  was  entitled  to  the  rent.* 

72.  K  the  mortgagor  and  mortgagee  join  in  a  lease,  and 
the  lessee  covenants  with  the  mortgagor  and  his  assigns  ;  the 
covenants,  being  collateral  to  the  land,  will  neither  descend 
at  common  law  to  the  heir  of  the  mortgagor,  nor  pass  to  an 
assignee  of  the  mortgagee,  under  St.  32  Hen.  8,  but  will  be 
covenants  in  gross,  on  which  actions  may  be  brought  by  the 
mortgagor  or  his  personal  representatives.^ 

1  2  Greenl.  Cruise,  112.  n.  *  Edwards  v.  Jones,  1  Coll.  Cha.  247. 

2  Smith  r.  Pilkington,  1  Tyrwh.  313.  ^  -Webb   v.   Russell,   3    T.   R.   393; 

3  Harold  v.  Whitaker,  Q.  B.  29,  May,  Stokes  i'.  Russell,  lb.  678. 
1846;  15  L.J.  345. 


196  THE   LAW   OF  MORTGAGES.  [cH.  IX. 

73.  In  Pargeter  v.  Harris,^  the  mortgagor  made  a  lease, 
reciting  the  mortgage  ;  and  after  assignment  brought  an  action 
for  rent,  upon  the  covenant.  Held,  the  covenants  were  in 
gross,  and  it  might  well  be  alleged  in  the  declaration,  that 
the  plaintiff  had  no  reversion  at  the  time  of  the  demise,  and 
a  plea,  that  "  the  reversion  was  in  the  plaintiffs  at  the  time 
of  the  demise,  and  before  breach  the  plaintiffs  had  assigned 
it  to  a  third  person,"  was  bad ;  there  being  no  recital  in  the 
lease,  which  constituted  an  estoppel. 

74.  Where  the  mortgagee  leases,  with  the  concurrence  of 
the  mortgagor,  the  lessee  covenanting  with  both,  to  pay  rent 
to  the  former  till  payment  of  the  mortgage,  and  then  to  the 
latter ;  the  covenant  runs  with  the  land  till  the  mortgage  is 
discharged,  and  then  becomes  a  covenant  in  gross.  While 
the  mortgage  continues,  the  mortgagee  is  the  proper  party  to 
bring  a  suit ;  and  if  payment  of  the  mortgage  is  relied  upon 
in  defence,  it  must  be  pleaded  as  a  defeasance  of  the  covenant 
with  the  plaintiff.^ 

75.  Where  it  appears  on  the  face  of  a  lease,  that  the  legal 
estate  is  in  the  mortgagee  or  a  trustee  for  him ;  a  right  of 
entry  reserved  to  the  mortgagor  is  void,  he  being  a  stranger.*^ 

76.  The  mortgagee  may  sometimes  himself  become  a 
lessee.  Thus  it  is  held,  that  if  the  mortgagee  and  the  mort- 
gagor join  in  leasing,  and  the  former  takes  an  underlease 
from  the  lessee,  the  mortgagee  holds  as  tenant,  not  as  mort- 
gagee, and  the  mortgage  is  postponed  to  the  lease.* 

77.  So  in  the  case  of  Newall  v.  Wright,^  the  mortgagee 
was  himself  also  a  lessee  of  the  estate.  Some  of  the  follow- 
ing observations  of  course  relate  to  this  peculiar  state  of 
facts  ;  but  mo^t  of  them  are  of  a  general  character,  and  throw 
light  upon  the  several  topics  discussed  in  the  preceding 
pages  ;  the  estate  of  the  mortgagor  and  of  those  claiming 
under  him.     In  that  case,  Chief  Justice  Parsons  remarks  as 


17  Q.  B.  Rep.  708.  "Doc  v.  Lnwrcncc,  4  Taunt.  23. 

•^  Wliitukcr  V.  Ilarrold,  17  L.  J.  Q.  B.        *  P.igc  v.  Broom,  4  Kuss.  6. 
343,  N.  S.  ^3  Mass.  138. 


CH.  IX.]       ESTATE   OF  THE  MORTGAGOK,  IN  POSSESSION.  197 

follows  :  ^  —  "  When  a  man,  seized  of  lands  in  fee,  shall  mort- 
gage them  in  fee,  if  there  be  no  agreement  that  the  mortgagor 
shall  retain  possession,  the  mortgagee  may  enter  immedi- 
ately, put  the  mortgagor  out  of  possession,  and  receive  the 
profits ;  and  if  the  mortgagor  refuses  to  quit  the  possession, 
the  mortgagee  may  consider  him  as  a  trespasser,  and  may 
maintain  an  action  of  trespass  against  him,  or  he  rflay  in  a 
writ  of  entry  recover  against  him  as  a  disseizor.  But  there 
may  be  an  agreement,  that  the  mortgagor  shall  retain  the 
possession  until  the  condition  be  broken,  which  shall  bind  the 
mortgagee ;  in  which  case,  the  mortgagor  may  demise  the 
estate  to  a  stranger,  and  receive  the  rents  to  his  own  use. 
And  upon  the  same  principle,  we  are  satisfied  that  the  mort- 
gagee, if  he  consent  to  take  a  lease  from  the  mortgagor,  and 
covenant  to  pay  him  rent  until  the  condition  be  broken,  shall 
be  bound  by  his  covenant,  and  shall  not  be  admitted  to  set 
up  his  mortgage  against  the  lease.  The  demise  is  in  law  an 
agreement  that  the  mortgagor  shall  retain  the  possession,  and 
receive  the  profits  to  his  own  use.  As  the  lease  is  for  five 
years,  (the  case  finding  that  the  lease  and  mortgage  were 
made  at  the  same  time,)  and  as  the  money  secured  by  the 
mortgage  was  to  be  paid  in  the  same  time,  it  is  apparent  that 
the  lease  and  the  mortgage  were  intended  to  execute  one 
contract ;  and  to  give  complete  operation  to  both  those  deeds, 
it  is  reasonable  to  suppose  the  mortgage  first  executed.  For 
if  the  lease  had  been  first  executed,  and  the  mortgage  intended 
to  control  the  lease,  no  reason  can  be  given  why  the  lease 
was  not  in  fact  surrendered,  as  of  no  effect  between  the  par- 
ties. It  is  therefore  our  opinion,  that  the  execution  of  the 
first  mortgage  is  no  bar  to  the  recovery  of  the  rent  due  on  the 
lease.  Suppose  the  question  to  arise  on  a  lease  made  by  a 
man  seized  in  fee,  who  afterwards  conveys  the  premises  to 
the  lessee  in  fee,  on  condition  that  the  conveyance  be  void, 
upon  his  paying  a  sum  of  money  to  the  lessee  at  a  future 
day.     If  the  lessor,  having  the  reversion  in  fee,  make  an  abso- 

13  Mass.  152-154. 

17* 


198  THE   LAW   OF  MORTGAGES.  [CH.  IX. 

lute  conveyance  of  the  estate  in  fee  to  the  lessee,  without 
doubt  the  term  is  extinguished.  If  he  convey  the  estate  in 
fee  to  a  third  person,  the  rent  shall  pass,  as  incident  to  the 
reversion.  But  if  he  mortgage  in  fee  the  estate  to  a  third 
person,  the  mortgagee  may  receive  the  rent  as  incident  to  the 
reversion,  or  permit  the  mortgagor  to  receive  it  at  his  election. 
If  he  do  no  act  to  show  his  election  to  receive  the  rent,  the 
mortgagor  shall  recover  it  of  the  lessee,  who  cannot  plead 
the  mortgage  in  bar.  But  as  the  mortgagee  cannot  put  the 
tenant  out  of  possession,  if  he  demand  the  rent  of  him,  the 
tenant  must  pay  it  to  him  ;  and  if,  after  demand,  the  tenant 
shaU  pay  it  to  the  mortgagor,  he  will  pay  it  in  his  own  wVong. 
In  the  case  at  bar,  the  mortgagee  is  the  tenant,  and  he  can- 
not demand  the  rent  of  himself.  If  he  refuse  to  pay  it  to  the 
mortgagor,  he  must  be  considered  as  claiming  the  rent,  if  by 
law  he  may  be  entitled  to  it ;  and  this  refusal  is  a  sufficient 
notice  to  the  mortgagor.  The  legal  effect  of  this  reasoning 
is,  that  when  the  mortgagee  shall  refuse  to  pay  the  rent,  the 
rent  is  suspended  until  the  condition  of  the  mortgage  be  per- 
formed or  the  estate  be  redeemed  ;  and  upon  either  event  the 
rent  will  again  become  payable,  if  the  term  has  not  in  the 
mean  time  expired.  And  during  the  suspension,  the  lessee 
will,  as  mortgagee,  be  accountable  for  the  profits  to  the  mort- 
gagor to\vards  the  payment  of  the  debt,  first  keeping  down 
the  interest ;  and  of  the  value  of  the  profits  the  reserved  rent 
will  prinid  facie  be  evidence.  If,  however,  the  lessee  shall 
voluntarily  pay  the  rent  to  the  mortgagor,  he  shall  not  after- 
wards be  accountable,  as  mortgagee,  for  the  profits  received 
for  the  same  time." 

78.  The  following  summary  of  the  relations  between  mort- 
gagor and  mortgagee  is  given  by  IVIr.  Coote.^ 

1.  If  the  mortgage  provides,  that  the  mortgagor  may  re- 
tain possession  till  breach  of  condition  ;  he  may  be  regarded 
as  a  tenant  for  years  till  such  breach ;  and,  upon  his  death, 
his  interest  may  vest  in  his  executors,  who  shall  hold  in  trust 
for  the  heirs. 

1  Coote,  327-330.     Sec  Smith's  Leading  Cases,  (Am.  ed.)  570,  n. 


CH.  IX.]      ESTATE   OF  THE   MORTGAGOR,   IN  POSSESSION.  199 

2.  After  breach  of  condition,  until  payment  of  interest  or 
other  recognition  of  tenancy,  he  is  tenant  at  sufferance,  hav- 
ing rightfully  entered,  but  holding  over  wrongfully. 

3.  If  there  is  no  agreement  for  possession,  and  the  mort- 
gagor remains  in  possession  with  the  mortgagee's  consent ; 
he  is  strictly  tenant  at  will. 

4.  If,  in  the  latter  case,  the  mortgage  is  assigned  without 
concurrence  of  the  mortgagor,  this  terminates  the  estate  at 
will,  and  makes  the  mortgagor  tenant  at  sufferance  till  pay- 
ment of  interest  or  other  recognition  of  tenancy ;  and  when- 
ever the  mortgagor  is  a  tenant  at  will,  the  death  of  either 
party  terminates  such  tenancy.  Upon  the  death  of  the  mort- 
gagor, if  his  heir  or  devisee  enter  and  occupy  without  recog- 
nition of  the  mortgagee's  title  by  payment  of  interest  or 
otherwise,  this  may  be  treated  as  an  adverse  possession. 
Upon  the  death  of  the  mortgagee,  the  mortgagor  becomes 
tenant  at  sufferance  to  his  representative,  till  some  recogni- 
tion of  tenancy,  and  then  tenant  at  wiU. 

5.  Wherever  a  tenancy  at  sufferance  exists,  and  even 
where  an  adverse  possession  commences,  as  by  the  entry  of 
the  heir  or  devisee  of  the  mortgagor  without  the  mortgagee's 
consent ;  payment  of  interest  is  a  recognition  of  the  mort- 
gagee's title,  and  evidence  of  an  agreement  that  the  mort- 
gagor, or  person  claiming  under  him,  shall  hold  at  will,  and 
a  strict  tenancy  at  will  commences. 

6.  If  the  estate  is  occupied  by  tenants,  and  the  mortgagor 
allowed  to  receive  the  rents,  he  has  been  treated  as  a  receiver, 
but  not  subject  to  account.  The  correctness  of  this  view, 
however,  has  been  strongly  questioned,  particularly  by  Lord 
Eldon  in  ex  parte  Wilson.^ 

79.  In  connection  with  the  subject  now  under  considera- 
tion, it  is  proper  to  give  an  account  of  a  judicial  controversy, 
which  perhaps  is  of  little  practical  importance  in  the  United 
States,  where  leasehold  mortgages  are  of  rare  occurrence ; 
but  which  is  found  carried  on  with  much  earnestness  in 

1  2  Ves.  &  Beam.  252. 


200  THE   LAW   OP  MORTGAGES.  [CH.  IX. 

many  English  cases.  The  mortgagor  being  in  general 
treated  as  owner  of  the  estate,  the  question  arose,  whether 
the  mortgagee  of  a  leasehold^  like  an  absolute  assignee,  be- 
came liable  upon  the  covenants  in  the  lease.  The  following 
abstracts  of  the  decisions  will  be  sufficient  to  explain  the 
nature  of  this  discussion. 

80.  "  In  Eaton  v.  Jaques,  Doug.  454,  decided  in  1780,  the 
question  arose  whether  a  mortgagee  of  the  lessee  of  a  term, 
never  having  taken  possession  under  the  mortgage,  was  lia- 
ble as  assignee  for  rent  in  arrear,  and  it  was  held  by  Lord 
Mansfield,  and  all  the  other  judges  of  the  King's  Bench,  that 
he  was  not.  {j)  It  was  put  upon  the  ground,  that  as  mort- 
gagee out  of  possession,  he  was  not  assignee,  because  he 
had  not  all  the  estate,  right,  title,  interest,  &c.  of  the  mort- 
gagor ;  that  the  mortgage  was  but  a  security  to  the  mort- 
gagee, the  legal  estate  still  remaining  in  the  mortgagor. 
This  decision  does  not  appear  to  have  been  satisfactory  to 
the  profession  in  England.  Lord  Kenyon  doubted  its  cor- 
rectness in  Westerdell  v.  Dale,  7  T.  R.  311 ;  and  in  Stone  v. 
Evans,  Woodfall,  113,  said  he  would  overrule  it  without  the 
least  hesitation  ;  and  in  Williams  v.  Bosanquet  and  others, 
1  Brod.  &  Bing.  5  Com.  Law  R..  72,  it  was  formally  over- 
ruled upon  a  consideration  of  all  the  previous  cases.  It  was 
there  held,  that  when  a  party  takes  an  assignment  of  a  lease 


(7)  "  In  point  of  fact,  this  case  must  have  existed  for  a  century  past,  in  a 
thousand  instances ;  in  this  great  town,  particularly,  building  leases  have 
been  and  are  perpetually  mortgaged ;  and  yet  no  instance  has  been  found 
■where  the  ground  landlord  has  attempted  to  charge  the  mortgagee,  not  in 
possession,  with  the  rent  or  covenants.  This  is  a  strong  argument  against  the 
plaintiff,  especially  where  the  case  is  so  hard,  so  unjust,  and  unconscionable. 
Numberless  inconveniences  would  arise,  if  such  a  demand  could  be  sup- 
ported. The  mortgagee  never  asks  whether  the  rent  is  paid  ;  he  only  looks 
to  his  security  ;  and,  when  the  principal  and  interest  are  paid,  he  re-assigns. 
But  if  the  plaintiff  is  right,  a  mortgagee  might  be  called  upon,  years  after 
such  re-assignment,  for  arrears  or  breaches  of  covenant  during  the  assign- 
ment ;  the  consequences  would  be  terrible."     Doug.  459. 


CH.  IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  201 

by  way  of  mortgage,  as  a  security  for  money  lent,  the  whole 
interest  passes  to  him,  and  he  becomes  liable  on  the  covenant 
for  payment  of  rent,  though  he  has  never  occupied  or  become 
possessed  of  the  premises  in  fact.  Vide  Woodfall,  111,  112, 
113;  Powell  on  Mortgages,  233  to  243.  The  doctrine  of 
Eaton  V.  Jaques  is,  that  when  a  lessee  mortgages  his  term, 
his  whole  interest  does  not  pass  to  the  mortgagee  ;  that  until 
he  takes  possession,  the  legal  ownership  is  in  the  mortgagor, 
subject  to  the  lien  of  the  mortgagee ;  that  the  mortgagee  of 
course  is  not  assignee,  as  an  assignee  must  take  the  whole 
interest  of  the  lessee.  Williams  v.  Bosanquet  on  the  con- 
trary held,  that  the  whole  interest  passes  by  the  mortgage, 
and  that  the  mortgagee  consequently  becomes  assignee,  and 
is  liable  as  such.  This  precise  question  arose  in  the  case  of 
Astor  V.  Hoyt  and  others,  5  Wendell,  603,  where  the  doctrine 
of  Eaton  v.  Jaques  was  considered  as  the  well-settled  and 
established  law  of  this  State.  It  was  there  held,  that  a  mort- 
gagor is  the  owner  of  the  property  mortgaged  against  all  the 
world,  subject  only  to  the  lien  of  the  mortgagee  ;  and  that  a 
mortgagee  of  a  term,  not  in  possession,  cannot  be  considered 
as  an  assignee ;  but  if  he  takes  possession  of  the  mortgaged 
premises,  he  has  the  estate  cu7n  onere,  and  is  liable  as 
assignee  upon  the  covenants  contained  in  the  lease.  When 
the  mortgagee  takes  possession,  he  then  has  all  the  right, 
title,  and  interest  of  the  mortgagor.  Then  he  acquires,  and 
the  mortgagor  loses  an  estate  liable  to  be  sold  on  execution ; 
he  is  then  substituted  in  the  place  of  the  mortgagor  who  was 
lessee,  and  therefore  is  assignee,  and  liable  as  such."  ^ 

81.  Mr.  Coote^  gives  the  following  somewhat  fuller  ac- 
count of  the  decisions  upon  this  point.  In  the  case  of  Eaton 
V.  Jaques,3  tried  before  Mr.  Justice  Buller  in  1780,  and  the 
first  case  in  which  the  point  arose  at  laiv  ;  it  was  held  that 
the  mortgagee  is  not  liable,  unless  he  takes  possession.  The 
question  was  reserved  for  the  Court  of  King's  Bench.      It 


1  Opinion  of  the  Court  in  Astor  v.  -  Cootc,  p.  165. 

Miller,  2  Paij:e,  68.  3  Dong.  438. 


202  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

had  been  considered  to  be  clear  law  by  Lord  Chief  Justice 
Holt,^  that  an  absolute  assignment  vested  the  estate  in  the 
assignee  before  entry ;  and  in  equity  the  same  doctrine  had 
been  undoubtedly  applied  to  a  mortgage.  Thus  in  a  case  ^ 
where  a  lease  had  been  granted  with  covenants  to  repair,  the 
lease  assigned  by  way  of  mortgage,  and  the  mortgagee  had 
never  entered ;  the  houses  being  greatly  out  of  repair,  the 
lessor  filed  his  bill  against  the  assignee  for  discovery  and 
specific  performance.  The  Court  said,  it  was  the  mort- 
gagee's folly  to  take  an  assignment  of  the  whole  term,  and 
thereby  subject  himself  to  the  covenants ;  but,  being  only  a 
mortgagee  not  in  possession,  the  Court  would  not  assist  the 
plaintiff,  but  leave  him  to  his  remedy  at  law.  In  another 
case  in  equity,^  where  a  lease  had  been  assigned  by  way  of 
mortgage,  but  the  mortgagee  had  not  entered ;  the  lessor 
recovered  at  law  for  rent.  Whereupon  the  mortgagee  filed 
her  bill  for  relief,  but  it  was  dismissed,  she  being-  ill  advised 
to  take  an  assignment  of  the  whole  term.  The  Court  of 
King's  Bench,  however,  seemed  to  consider  these  cases  of 
little  weight,  and  decided  that  the  mortgagee  was  not  liable 
before  taking  possession.  Lord  Mansfield  said  :  —  "To  do 
justice  between  men,  it  is  necessary  to  understand  things  as 
they  really  are,  and  to  construe  instruments  according  to  the 
intention  of  the  parties.  Can  we  shut  our  eyes  and  say  it 
was  an  absolute  conveyance  ?  It  was  a  mere  security ;  it 
was  not  an  assignment  of  a/l  the  mortgagor's  estate,"  &c. 
In  this  Willes  and  Ashhurst,  Justices,  coincided.  But  Mr. 
Justice  Buller  went  further,  saying,  he  did  not  agree  that, 
even  if  the  assignment  ivas  absolute^  the  action  would  lie 
without  possession,  and  added,  "  there  is  no  instance." 

In  "Walker  v.  Reeves,'*  which  was  a  case  of  absolute  assign- 
ment. Lord  Mansfield  said  :  —  "By  the  assignment,  the  title 
and  possessory  right  passed,  and  the  assignee  became  pos- 
sessed in  law,  and  this  case  is  by  no  means  like  Eaton  v. 

1  Cook  );.  Harris,  1  Ld.  Raym.  367.  "  IMlkin^ton  v.  Sliallcr,  2  Vern.  ;574. 

'^  Hparkcs  v.  Smith,  2  Vcrn.  277.  ■*  Doug.  461,  n. 


CH.  IX.]      ESTATE   OF  THE   MORTGAGOR,   IN   POSSESSION. 


203 


Jaques,  which,  being  a  mortgage,  was  not  an  assignment  for 
this  purpose ;  it  was  a  mere  security. 

In  the  case  of  Chinnery  v.  Blackburne,^  it  was  held  that 
the  mortgagee  of  a  ship,  not  in  possession,  could  not  main- 
tain an  action  for  freight.  In  Jackson  v.  Vernon,^  that  such 
mortgagee  was  not  liable  for  goods  furnished  for  the  ship. 
In  these  cases  the  doctrine  of  Eaton  v.  Jaques  was  recog- 
nized. 

In  Westerdell  v.  Dale,'^  Lord  Kenyon  said :  —  "As  to  the 
cases  respecting  a  mortgagee,  whether  in  or  out  of  possession, 
he  is  the  legal  owner,  and  must  be  so  considered  in  a  court 
of  law,  notwithstanding  his  title  is  subject  to  equitable  inter- 
ests. It  is  said  in  one  of  the  cases,  that  a  mortgagee  is  only 
liable  when  in  possession,  and  that  what  proves  this  point  is, 
that  in  charging  the  mortgagee  it  is  necessary  to  state  in 
pleading,  that  he  entered  and  was  possessed.  But  with  great 
deference  to  the  learned  Judge  who  gave  the  reason,  I  doubt 
it ;  I  consider  those  as  formal  words." 

In  Stone  v.  Evans,'^  an    action  against  the  assignee  of  a 

lease  by  way  of  a  mortgage.  Lord  Kenyon  ruled  that  the 

defendant  was   liable ;  and   "  as  to   the   case   of  Eaton  v. 

m 
Jaques,  he  would  overrule  it  without  the  least  reluctance.   *• 

In  the  case  of  Mayor,  &c.  v.  Blamire,^  the  point  was  dis- 
cussed, but  held  unnecessary  to  decide,  for  the  purposes  of 
that  action. 

In  the  case  of  Lucas  v.  Comerford,^  a  lease,  with  covenants 
for  rebuilding,  &c.,  was  deposited  by  the  lessee  with  a  cred- 
itor for  security.  The  executors  of  the  lessor  filed  a  bill 
against  the  creditor  for  specific  performance  of  the  covenants. 
The  defendant  in  his  answer  admitted  his  liability  upon  tlie 
other  covenants,  but  denied  that  he  was  bound  to  rebuild. 
Lord  Chancellor  Thurlow  said  :  —  "  It  was  no  matter  whether 
the  defendant  took  the  lease  as  a  pledge  or  as  a  purchase ; 
he  could  not  take  the  estate  and  refuse  the  burden ;  it  was 


MH.  Bl.  117,  n.  -Id.  s  7  t.  E.  302. 

*  Woodf.  113.  5  8  E.  487.  <^  1  Ves.  Jun.  235. 


204  THE  LAW   OF   MORTGA(^S.  [CH.  IX. 

nothing  to  the  lessor."  The  prayer  for  specific  performance 
was  refused,  but  the  defendant  decreed  to  execute  an  assign- 
ment, in  order  that  the  plaintiff  might  sue  at  law. 

In  the  case  of  Williams  v.  Bosanquet,'  the  question  was 
again  argued  in  Serjeants'  Inn  HaU  before  ten  of  the  judges, 
and  the  authority  of  Eaton  v.  Jaques  expressly  overruled. 

82.  Mr.  Greenleaf  says  :  ^  —  "  It  is  well  settled,  as  a  general 
doctrine,  that  a  mere  legal  ownership  does  not  make  the 
party  liable  in  cases  like  those  supposed  in  the  text "  (the 
mortgage  of  a  leasehold  interest,  containing  covenants  by 
the  lessee)  "  without  some  evidence  of  his  possession  also, 
or  of  his  actual  agency.     This  principle  is  clearly  recognized 
in  the  law  of  shipping  ;  the  rule  being  settled  that  the  mort- 
gagee of  a  ship  does  not  incur  the  liabilities  of  an  owner, 
until  he  takes  possession,  or  actively  interferes  in  the  employ- 
ment of  the  vessel."     "  The  assignee  in  mortgage  of  a  chattel 
real,  not  in  actual  possession,  is  considered  as  possessed  only 
as  against  the  assignor,  and  this  by  way  of  estoppel.     He  is 
not  compelled  to  take  possession  ;  he  may  intend  to  acquire 
nothing  more  than  an  equitable  lien,  or  a  title  by  estoppel, 
and  against  purchasers  with  notice.     His  legal  title  in  that 
case  depends  on  a  legal  fiction ;  and  fictions  of  law  serve  to 
effectuate  the  actual  intent  of  the  parties,  but  never  to  defeat 
it.     Moreover,  it  is  conceded,  that  if  the  mortgagee  were  to 
take  an  assignment  of  all  the  term  except  one  day,  he  would 
not  be  liable  on  the  covenants  of  the  mortgagor  in  the  original 
lease  ;  which  shows  that  even  the  claim  of  his  liability  stands 
on  ground  purely  technical.     But  it  is  clear  that  before  entry 
the  assignee  cannot  bring  trespass  ;  nor  can  the  assignee  of  a 
-lessee  take  by  release,  before  entry,  to  enlarge  his  estate. 
Neither  has  a  mortgagee  out  of  possession  any  interest  which 
can  be   sold  on  execution ;   but  the  equity    of  redemption 
remaining  in  the  mortgagor  is   real   estate,  which  may  be 
extended  or  sold  for  his  debts.     Nor  does  the  mortgagee 
derive  any  profit  from  the  land  until  actual   entry  or  other 

1  1  IJiod.  &  15.  2.38.  -  2  Grccnl.  Cruise,  110,  n. 


CH.  IX.]       ESTATE    OF   THE   MORTGAGOR,    IN   POSSESSION.  205 

assertion  of  exclusive  ownership  ;  previous  to  which  the  mort- 
gagor takes  the  rents  and  profits,  without  liability  to  account. 
On  these  grounds,  it  has  been  held  here,  as  the  better  opinion, 
that  the  mortgagee  of  a  term  of  years,  who  has  not  taken 
possession,  has  not  all  the  legal  right,  title,  and  interest  of 
the  mortgagor,  and  therefore  is  not  to  be  treated  as  a  com- 
plete assignee,  so  as  to  be  chargeable  on  the  real  covenants 
of  the  assignor.  In  New  Hampshire,  it  has  been  held  other- 
wise ;  and  in  Virginia,  also." 


VOL.    I.  18 


206 


THE   LAW   OF   MORTGAGES. 


[CH.  X. 


CHAPTER   X. 


■'5 


WASTE   BY   THE   MORTGAGOR   OR   MORTGAGEE,   AND   REMEDIES 
THEREFOR. 


1.  The    mortgagor    cannot    commit 
waste. 

2.  Remedy  by  injunction. 


6.  By  action  at  law. 

22.  Injuries  done  by  third  persons. 

26.  Waste  liy  the  mortgagee. 


1.  Although  a  mortgagor  in  possession  is  regarded  for 
most  purposes  as  the  owner  of  the  land,  and  as  such  entitled 
to  the  temporary  annual  rents  and  profits  ;  yet,  inasmuch  as 
the  very  purpose  of  the  mortgage  would  be  defeated,  by  any 
acts  affecting  the  permanent  value  of  the  property,  the  law 
will  in  some  form  interpose,  either  to  prevent  the  commission 
of  waste  by  the  mortgagor,  especially  if  the  debt  is  thereby 
endangered,  or  to  compensate  the  mortgagee  for  the  value 
thus  taken  from  the  land.^ 

2.  The  usual  process  against  a  mortgagor  in  relation  to 
the  commission  of  waste,  is  a  preventive  one ;  being  an  in- 
junction from  a  court  of  equity.  It  has  been  sometimes 
questioned,  whether  Chancery  would  thus  interfere.  Thus 
in  Usborne  v.  Usborne,^  doubts  were  expressed  by  the  Court 
whether  a  mortgagor  should  be  restrained  from  cutting  tim- 
ber, the  mortgagee  being  in  fault  for  leaving  him  in  posses- 
sion ;  but  the  injunction  was  granted.  In  King  v.  Smith,^ 
it  was  held  that  the  Court  will  not  interfere,  unless  first  satis- 
fied that  the  security  is  defective.  And  if  the  interest  of  the 
estate  requires  that  the  wood  be  cut,  the  Court  may  make 
provision  for  the  cutting  of  it  upon  the  mortgagor's  giving 
security.     Thus,  where  a  large  proportion  in  value  of  pine 


1  Grav  V.  Baldwin,  8  Blackf.  JGt. 

2  1  l)i.-k.  7.').    Sec  Van  Wycl^  r.  Alli- 
ger,  <;  IJai-l).  :>{)!. 


«  2  Ilarc,  W^- 


CH.  X.J  ESTATE   OF   THE  MORTGAGOR.  —  WASTE.  207 

woodland  was  burnt  over,  and  it  was  proper,  in  order  to  save 
the  burnt  wood  from  rotting,  and  for  the  permanent  benefit 
of  the  estate  in  reference  to  the  new  growth,  that  the  burnt 
wood  should  be  cut  off,  the  land  without  the  wood  being  of 
small  value,  and  the  mortgagor  was  proceeding  to  cut  it,  when 
the  mortgagee  obtained  an  injunction ;  held,  a  reference 
should  be  ordered  to  ascertain  the  value  of  the  wood,  in  order 
that  the  mortgagor  might  give  security.^ 

2  a.  A  party,  collaterally  liable  for  the  mortgage  debt,  may 
have  an  injunction  against  waste  by  an  assignee  of  the  mort- 
gagor in  possession.  Thus  a  purchaser  of  part  of  the  estate 
mortgaged  may  have  such  injunction,  against  an  assignee  for 
benefit  of  creditors  of  another  part.  The  former  stands  in  the 
light  of  a  surety  for  the  mortgage  debt.^ 

2  b.  So  a  mortgagor  in  possession,  after  a  sale  under 
decree  and  execution,  will  be  restrained  from  committing 
waste.^ 

3.  Mr.  Powell  says,'*  an  injunction  will  always  be  granted, 
where  the  land  is  scanty  security  for  the  debt.  So  it  will  be 
granted  against  the  destruction  of  underwood,  if  contrary  to 
the  usual  course  of  husbandry,  but  not  of  underwood  gener- 
ally, even  though  the  mortgagor  is  insolvent  or  a  bankrupt. 

4.  And  it  seems  to  be  now  well  settled,  that  the  mortgagee 
may  have  an  injunction,  even  where  the  debt  is  not  due,  if 
the  mortgagor  in  possession  commits  waste,  or  in  any  way 
attempts  to  diminish  the  value  of  the  property ;  or,  if  it  con- 
sists of  personalty,  where  he  is  about  to  remove  it  beyond  the 
reach  of  his  creditor.  Otherwise,  a  fraudulent  mortgagor 
might,  at  his  pleasure,  deprive  the  creditor  of  all  benefit  from 
his  mortgage.'' 

4  a.  But  a  mortgagor  will  not  be  compelled  to  repair, 
where  the  estate  has  been  injured  without  his  fault.^ 

1  Brick  V.  Getsinger,  1  Halst.  Clia.  Ilodtjcs,  8  Vcz.  105;  Brown  v.  Stewart, 
391.  1  M(l.  Ch.  87. 

2  Johnson  v.  White.  11  Barb.  194.  ^  yulmon  v.  Clamtt,  .3  Bland,  180;  5 

3  rh(enix  v.  Clark,  2  Ilalst.  Ch.  447.     G.  &Johns.  314  ;  ^iiirdock,  2  Bhuid,4Gl. 
*  1  Bow.  1G5;  Humphreys  v.  Ilarri-         ''Campbell  i'.  Macomb,  4  Johns.  Ch. 

son,    1   Jac.    &  W.  581 ;   Hampton   v,     534. 


208  THE   LAW   OF   MORTGAGES.  [cH.  X. 

5.  If  a  bill  for  an  injunction  to  stay  waste,  brought  by  a 
mortgagee  against  the  mortgagor,  before  the  debt  is  due,  con- 
tain a  prayer  for  a  sale  of  the  premises  ;  such  prayer,  being 
repugnant  to  the  other  allegations,  will  be  rejected  as  sur- 
plusage, and  will  be  no  bar,  while  pending,  to  another  bill  for 
sale  or  foreclosm*eJ 

6.  In  addition  to  the  remedy  by  injunction,  it  has  been 
held  in  many  cases,  that  the  mortgagee  may  also  maintain 
an  action  at  law  against  the  mortgagor  for  waste. (a) 

7.  Thus  in  Maine,  if  a  mortgagor  in  possession  cut  down 
and  carry  away  timber  trees  growing  on  the  land,  the  mort- 
gagee may  maintain  an  action  of  trespass  against  him. 
Though  if  a  lot  of  wild  land  be  purchased,  and  mortgaged 
for  the  price,  it  has  been  made  a  question,  whether  the  mort- 
gagor might  not  set  up  a  general  usage  and  custom  in  the 
country  for  purchasers  in  such  cases  to  fell  the  trees  and  clear 
the  land,  as  amounting  to  a  license  from  the  mortgagee.^ 

8.  So  the  mortgagee  of  timber  lands  may  bring  trespass  or 
trover  against  one  who  cuts  and  carries  away  timber,  or 
afterwards  converts  it  to  his  own  use,  though  under  a  license 
from  the  mortgagor,  subsequent  to  the  mortgage.^  • 

9.  So,  although  after  such  wrongful  taking  the  plaintiff 
took  from  the  mortgagor  an  assignment  of  his  rights  under 
the  contract  with  the  defendant ;  the  plaintiff  not  waiving  his 
rights  as  mortgagee,  and  never  having  derived  any  benefit 
from  the  contract.^ 

9  a.  So  if,  after  a  decree  of  foreclosure,  and  before  the  time 
limited  for  redemption,  the  mortgagor  cut  and  carry  away 
timber,  the  mortgagee  may  recover  its  value  in  an  action  on 
the  case  in  the  nature  of  waste,  or  in  trover.^ 

1  Murdock,  2  Blund,  401.  «  Ihi.l. 

-  Stowcll  V.  Pike,  2  Grcenl.  387.  ^  Lungdon  v.  Taul,  22  Venn.  205. 

^  Frothingham  v.  McCusick,  1 1  Shcpl. 
403. 


('/)   III  Pcniisylvaiiia,  a  .statute  so  provlilcs.     Pfiui.  Stat.  1851,  (!13.      .See 
riiggon  t;.  Mortimer,  (J  Carr.  &  i'.  IIG;  Farraut  v.  Thompson,  2  D.  &  K.  3. 


en.  X.]  ESTATE   OF   THE   MORTGAGOR. — WASTE.  209 

10.  Where  there  are  t\vo  mortgages,  and  the  mortgagor, 
without  consent  of  either  mortgagee,  cuts  timber  from  the 
land,  and  the  first  mortgage  is  afterwards  discharged,  the 
second  mortgagee  may  maintain  an  action  of  trespass.^ 

11.  A  mortgagor  conveyed  the  land,  taking  back  a  mort- 
gage to  secure  the  price,  which  mortgage  he  afterwards 
assigned  to  the  plaintiff.  The  purchaser  being  in  possession, 
the  defendant  cut  timber  under  a  license  from  him,  without 
consent  of  either  mortgagee,  and  the  first  mortgage  debt  was 
afterwards  paid.  Held,  the  plaintijS"  might  maintain  trespass 
against  the  defendant.^ 

12.  In  Hitchman  v.  Walton,-^  an  action  on  the  case  was 
maintained,  in  favor  of  a  mortgagee  as  reversioner  against  the 
mortgagor's  assignees,  for  injiiry  to  the  land  by  removal  of 
fixtures. 

13.  So,  if  the  assignee  of  the  mortgagor  remove  fixtures 
from  the  land,  though  erected  after  execution  of  the  mort- 
gage by  the  mortgagor ;  the  assignee  of  the  mortgagee,  who 
held  the  mortgage  at  the  time  of  such  removal,  may  recover 
their  value  in  an  action  of  trespass.^ 

14.  But  it  has  been  held  in  Connecticut,  that  a  purcliaser 
from  the  mortgagor,  of  a  fixture  severed  from  the  land,  has  a 
better  title  to  it  than  the  mortgagee. 

15.  Mortgage  of  land,  upon  which  was  erected  a  grist-mill. 
After  a  decree  of  foreclosure  by  the  mortgagee,  and  a  judg- 
ment in  ejectment  for  possession,  but  during  the  time  limited 
for  redemption,  and  before  possession  taken  by  the  mort- 
gagee, the  mortgagor  severed  the  stones  from  the  mill,  and 
sold  them.  The  mortgagee  takes  possession  of  the  stones  as 
his  property,  and  the  purchaser  brings  trover  against  him. 
Held,  the  plaintiff  should  recover.'^ 

16.  In  New  York  it  has  been  held  that  a  mortgagee,  be- 
fore forfeiture,  cannot  bring  an  action  for  waste  against  the 

1  Saiiilers  v.  Reed,  12  N.  II.  558.  *  Smith  v.  Goodwin.  2  Grecnl.  17.3. 

'■^  Ibid.  5  Cooper  r.  Davis,  15  Conn.  556. 

3  4  Mecs.  &  W.  409. 

18* 


210  THE   LAW    OF   MORTGAGES.  [CH.  X. 

mortgagor.  His  interest  in  the  lands  is  contingent,  and  may- 
be defeated  by  payment  of  the  mortgage  debt.  In  this 
respect,  he  is  like  a  tenant  for  life,  who  cannot  sue  for  waste, 
because  his  interest  may  never  come  into  possession.  The 
remedy  is  an  injunction  in  equity.^  But  a  more  recent  case 
decides,  that  an  action  on  the  case  will  lie  by  the  holder  of  a 
mortgage,  against  the  mortgagor  or  a  purchaser  from  him, 
for  waste  committed  with  a  knowledge  that  the  value  of  the 
security  will  be  injured  thereby.  As  where  the  premises  were 
a  scanty  security  for  the  debt,  and  a  purchaser  from  the  mort- 
gagor took  away  the  fences,  and  cut  down  and  carried  away 
valuable  timber,  with  a  knowledge  of  the  existence  of  the 
mortgage  and  of  the  insolvency  of  the  mortgagor.  So, 
although  the  primary  motive  of  the  defendant  was  not  to 
injure  the  plaintiff's  security,  but  a  view  to  his  own  emol- 
ument.2 

17.  It  is  held  in  New  Hampshire,  that  if  the  cutting  of 
timber  has  been  expressly  or  impliedly  authorized  by  the 
mortgagee,  when  cut,  it  belongs  to  the  mortgagor ;  other- 
wise, the  mortgagee  may  either  have  an  injunction  in  equity 
or  an  action  at  law,  or  claim  the  timber  itself,  unless  the 
rights  of  third  persons  have  intervened."^ 

18.  A  similar  rule  has  been  adopted  in  Maine.  Thus  the 
plaintiff  conveyed  a  portion  of  a  tract  of  timber  land,  of 
which  he  was  the  owner,  taking  back  a  mortgage  for  the 
price,  and  gave  a  bond  to  convey  the  remainder,  on  payment 
of  a  certain  sum  ;  but  nothing  had  been  paid  for  the  land. 
The  defendant's  intestate  became  assignee  of  the  claim  to 
the  land  under  the  mortgage  and  bond,  and  being,  with  the 
knowledge  of  the  plaintiff,  in  quiet  and  peaceable  possession 
of  the  premises,  cut  timber  and  wood  therefrom  ;  one  third 
being  upon  the  land  described  in  the  bond,  the  rest  on  that 
described  in  the  mortgage.  The  defendant  having  inven- 
toried the  lumber  cut,  and  sold  a  part  of  it ;  and  the  plaintiff 

1  Peterson  v.  Clark,   15   Johns    205,         »  Smith  v.  Moore,  11  N.  II.  55.     See 
207  ;  see  Cooperw.  Diivis,  15  Coun.55(').     Saunders  v.  Reid,  12,  458. 
-  Van  Pelt  v.  McGraw,  4  Coinst.  110. 


CH.  X.]  ESTATE   OF   THE   MORTGAGOR.  —  WASTE.  211 

having  before  the  sale  demanded  the  property  of  him  ;  held, 
the  plaintiff  might  maintain  trover  for  the  value.^ 

19.  In  Gore  v.  Jenness,^  the  plaintiff  having  received  a 
mortgage  of  timber  land,  and  the  condition  having  been 
broken,  certain  timber  was  cut  from  it  under  permits  from 
the  mortgagors,  but  without  the  knowledge  or  consent  of  the 
mortgagee.  The  defendant  purchased  the  timber  without 
notice  of  the  mortgage,  and  the  plaintiffs  afterwards  seized 
it.  By  agreement,  it  was  subsequently  manufactured  into 
boards,  and  sold  ;  the  proceeds  to  be  subject  to  the  decision 
of  the  Court  as  to  the  legal  right  of  either  party  to  the  same. 
The  plaintiff  brings  assumpsit;  and  it  was  agreed  that  judg- 
ment should  be  rendered  for  the  plaintiff,  if  the  seizure  of 
the  timber  was  legal,  or  if  he  had  the  right  of  possession 
against  the  defendants.  Judgment  was  rendered  for  the 
plaintiff.  The  Court  say  :  —  "According  to  the  decisions  in 
Massachusetts  the  plaintiH'  is  clearly  entitled  to  judgment. 
The  principles  established  by  these  decisions  are  necessary 
for  the  security  of  the  mortgagee.  It  often  happens,  that 
the  timber  upon  wild  or  unimproved  land  constitutes  its 
principal  value.  The  timber  is  as  much  a  part  of  the  realty 
as  the  land  itself.  A  third  person  purchasing  the  timber, 
which  is  a  part  of  the  security,  takes  it  subject  to  the  para- 
mount rights  of  the  mortgagee,  as  much  as  if  he  had  pur- 
chased the  land."  '^ 

20.  A  mortgagor,  who  cuts  wood  upon  the  land  after  a 
decree  of  foreclosure,  is  a  trespasser.  Hence,  where  wood 
so  cut  was  attached  by  his  creditors,  and  sold  by  the  sheriff, 
but  remained  on  the  land  till  after  the  right  of  redemption 
had  expired,  and  the  mortgagee  then  entered  and  forbade  its 
removal,  and  sold  and  used  part  of  it  himself;  held,  the  pur- 
chaser had  gained  no  title  to  the  wood,  and  was  not  bound 
to  pay  for  it.'* 

21.  In    case   of    waste,    committed    after    such    decree, 

1  Busscv  V.  Page,  2  Shcpl.  132.  8  ib.  55. 

-  1  Apple.  53.  -        *  Lull  v.  Matthews,  19  Verm.  322. 


212  THE   LAW   OF   MORTGAGES.  [CII.  X. 

an  injunction   will  be   ordered,   though    not   asked  by   the 
bill.J 

22.  It  has  been  held,  that  a  mortgagee  has  not  a  sufficiently 
vested,  immediate,  and  direct  title  to  the  property,  to  main- 
tain an  action  for  injuries  done  to  it  by  a  third  person,  unless 
they  are  committed  with  the  express  intent  to  wrong  and 
defraud  him,  and  the  mortgagor  is  insolvent  or  unable  to  pay 
the  mortgage  debt. 

23.  In  Lane  v.  Hitchcock,^  an  action  was  brought  by  the 
assignee  of  a  mortgage,  for  prostrating  and  destroying  certain 
buildings  on  the  land,  by  which  the  value  was  reduced  and 
the  plaintiff  greatly  damnified.  It  was  held  to  be  a  fatal 
obstacle  to  a  recovery,  that  the  plaintiff  had  not  alleged  in 
the  declaration  the  insolvency  of  the  mortgagor,  or  his  in- 
ability to  pay  the  mortgage  debt. 

24.  In  the  Bank,  &c.  v.  Mott,^  the  Bank  of  Utica  had  a 
judgment  against  Mc Bride,  which  bound  his  lands.  The 
plaintiffs  held  junior  mortgages  against  McBride,  which 
bound  the  same  lands.  The  plaintiffs  bring  an  action  against 
the  defendant,  alleging  that  he,  as  sheriff,  in  executing  a  fi. 
fa.  issued  at  the  suit  of  the  Bank  of  Utica,  so  negligently 
managed  the  personal  property  of  McBride,  that  it  did  not 
bring  its  full  value  by  $1,000,  so  that  this  sum  came  in  upon 
the  mortgaged  land  and  other  lands,  and  took  so  much  out 
of  the  plaintilfs'  pockets.  It  was  held,  that  the  action  could 
not  be  maintained,  although  the  Bank  of  Utica  or  McBride 
himself  might  bring  a  suit,  they  being  the  parties  immediately 
wronged. 

25.  In  Gardner  v.  Heartt,'*  the  plaintiff,  as  holder  of  a 
mortgage,  brought  an  action  against  the  defendant  for  neg' 
licence  in  removing  earth  from  a  hill  adjacent  to  the  mort- 
gaged premises,  whereby  portions  of  the  hill  were  made  to 
slide  down  upon  those  premises,  and  thereby  greatly  injured 
them.     It  was  held,  that  the  action  could  not  be  maintained, 


1  fioodman  ?'.  ICinc,  8  Beav.  379.  ■''  17  Wi'iid.  r)54. 

'^  14  Joliiis.  21  a.  ■*  3  Deuio,  2.32. 


CH.  X.]  ESTATE   OF   THE   MORTGAGOR.  —  WASTE.  213 

although  it  might  lie,  if  the  act  charged  had  been  done  with 
intent  to  defraud  the  plaintiff,  and  if  the  plaintiff  proved 
that  the  mortgagor  was  insolvent  or  unable  to  pay  the  mort- 
gage debt. 

26.  At  law,  a  mortgagee  may  commit  waste,  unless  he 
has  expressly  covenanted  against  it.^  But  equity  will  enjoin 
against  it,  unless  the  security  is  defective,  and  decree  an 
account  of  timber  already  cut.  And  a  mortgagee  will  be 
required  to  apply  the  value  of  timber  cut,  first  to  the  interest, 
then  to  the  principal,  of  his  debt.^  A  mortgagee  must  ac- 
count for  the  proceeds  of  timber  cut  by  a  third  person,  which 
are  received  by  him.^  But  a  mortgagee  of  land,  containing  a 
mine  previously  wi'ought,  may  work  such  mine.^  So,  a 
mortgagor  cannot  charge  the  mortgagee  in  possession  for 
waste  by  clearing  and  cultivating  the  land,  and  also  with 
the  improved  rent  arising  from  such  clearing;  though  it 
seems  he  may  claim  either  at  his  election.'^  So,  an  assignee 
of  the  mortgagor,  seeking  relief  as  such,  cannot  hold  the 
mortgagee  accountable  for  waste  committed  before  the  as- 
signment.'' 

27.  In  Hanson  v.  Derby,''  the  bill  being  to  redeem  a  mort- 
gage, on  the  hearing,  an  account  was  decreed,  and  X240 
reported  due;  to  which  report  the  defendant  had  excepted. 
The  cause  thus  standing  in  court,  the  Lord  Keeper,  on  a 
motion  and  reading  affidavits  that  the  defendant  had  burnt 
some  of  the  wainscot  and  committed  waste,  ordered  the 
defendant  to  deliver  up  possession  to  the  plaintiff,  who  was 
a  pauper,  giving  security  to  abide  the  event  of  the  account. 

28.  So,  if  the  mortgagee  unnecessarily  pulls  down  build- 
ings, and  erects  new  ones,  without  the  mortgagor's  consent, 
he  is  liable  for  any  consequent  loss  of  rent,  and  will  not  be 


1  Evans  v.  Thomas,   Cro.  Jac.   172;  ^  Gore  i\  Jcnness,  1  Apple.  53. 

but  see  McCormick  v.  Dighy,  8  Blackf.  *  Invin  v.  Davidson,  3  Ircd.  Cli.  311. 

99.  ^  Morrison  v.   McLeod,  2  Ired.    CIi. 

-  Wetherin^'ton  v.  Banks,  Scl.   Cas.  108. 

Cha.   30  ;    Hanson   v.  Derby,    2  Yern.  «  Gordon  r.  Ilobart,  2  Story,  243. 

392;  Farrant  v.  Lovel,  3  Atk.  723.  "  2  Vern.  392. 


214  THE   LAW   OF  MORTGAGES.  [CH.  X. 

allowed  for  lasting  improvements  and  repairs,  unless  the  re- 
sult of  the  whole  is  to  increase  the  value  of  the  property.^ 

28  a.  On  a  bill  to  redeem,  the  mortgagor  claimed  that  a 
master,  to  whom  the  case  had  been  referred,  should  havfe 
allowed  treble  damages  for  waste  committed  by  the  mort- 
gagee, pending  the  bill.  Held,  such  claim  could  be  enforced 
only  by  the  statutory  remedy .^(6) 

1  Coote,   429  ;  Sandon  v.  Hooper,  6  ^  Boston,  &c.  v.  King,  2  Cush.  401. 

Beav.  246. 


(&)  Lord  Hai'dwicke  thus  sums  up  the  law  relating  to  waste  committed  by 
mortgagee  or  mortgagoi'.  Where  a  mortgagee  in  fee  in  possession  commits 
waste  by  cutting  down  timber,  and  the  money  arising  by  the  sale  of  the 
timber  is  not  applied  in  sinking  the  interest  and  principal  of  his  mortgage, 
the  Court,  on  a  bill  brought  by  the  mortgagor  to  stay  waste,  and  a  certificate 
thereof,  will  grant  an  injunction.  So,  likewise,  where  there  is  only  a  mort- 
gage for  a  term  of  years,  and  the  mortgagor  commits  waste,  the  Court,  on  a 
bill  by  the  mortgagee  to  stay  waste,  will  grant  an  injunction,  for  they  will 
not  suffer  a  mortgagor  to  prejudice  the  incumbrance.  Farrant  v.  Lovel, 
3  Atk.  723. 


CH.  XI.]  ESTATE   OF  THE  MORTGAGEE.  215 


CHAPTER  XL 

ESTATE    OF   THE   MORTGAGEE.      NATURE^  OF   HIS    TITLE.      CONNEC- 
TION BETWEEN  THE  MORTGAGE  AND  THE   PERSONAL  SECURITY. 


1 .  A  mortgage  is  personal  estate.  The 
mortgagee  has  a  mere  lien  or  pledge. 

5.  Transfer  of  mortgage  witliout  the 
debt. 

10.  Assignment  of  the  debt :  whether 
it  passes  the  mortgage ;  doctrine  upon 
tliis  subject  in  the  several  States ;  mort- 
gage to  secure  several  debts,  some  of 
which  are  transfeired ;  assignment  of 
ditlbrent  debts  to  different  persons. 

41.  The  mortgagee  cannot  make  a 
lease. 

43.  He    has    an     insurable    interest. 


the  assignment  of  an  estate,  not  a  mere 
security. 

52.  Case  of  Martin  v.  Mowlin,  and 
criticisms  thereupon. 

56.  Joint  mortgagees  ;  their  interest 
in  the  mortgage  and  the  personal  secu- 
rity. 

63.  A  mortgage  is  not  suliject  to  legal 
process. 

68.  Passes  as  personal  property,  upon 
the  death  of  the  mortgagee. 

70.  By  what  words  devised. 

76.  Eespective  titles  of  heir  and  ex- 


Rights  and  duties  of  parties  in  case  of  ec!(/or  ;   nature   of    the   interest   in   the 
the  insurance  of  mortgaged  property.       executor's  hands  ;  sale  for  payment  of 
50.  The  assignment  of  a  mortgage  is  debts,  &c. 

1.  The  proposition  having  been  fully  explained  in  preced- 
ing chapters,  that  the  mortgagor,  notwithstanding  the  mort- 
gage, still  continues  to  own,  instead  of  having  a  mere  right 
to  the  land  ;  it  follows,  as  a  matter  of  course,  that  the  mort- 
gagee has  an  interest  in  the  property  mortgaged,  quite  distinct 
from  an  ordinary  title  to  land.  Accordingly  the  doctrine  is 
equally  well  established,  that  a  mortgage,  though  purporting 
to  convey  an  estate  in  fee-simple,  yet  being  merely  security 
for  a  debt,  {a)  follows  the  nature  of  the  debt  itself,  and,  so 
long  as  the  right  of  redemption  continues,  is  personal  estate. 
Both  in  law  and  equity  the  mortgagee  has  only  a  chattel 


(a)  Upon  this  ground,  where  separate  mortgages  are  made  of  distinct 
estates,  but  to  secure  one  debt ;  it  is  held,  that  the  unity  of  the  mortgage  is 
to  be  determined  by  the  debt.     Franklin  v.  Gorham,  2  Day,  143. 


216  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

interest.^     In  common  sense,  he  has  only  a  pledge?     He  is 
not  the  substantial  owner.-'^ 

2.  In  Martin  v.  Mowlin/  Lord  Mansfield  is  reported  to 
have  said,  that  "  a  mortgage  is  a  charge  upon  the  land  ;  and 
whatever  would  give  the  money,  will  carry  the  estate  in  the 
land  along  wath  it,  to  every  purpose.  The  estate  in  the  land 
is  the  same  thing  as  the  money  due  upon  it.  It  will  be  liable 
to  debts  ;  it  will  go  to  executors  ;  it  will  pass  by  a  will  not 
made  and  executed  with  the  solemnities  required  by  the 
statute  of  frauds.  The  assignment  of  the  debt,  [b)  or  for- 
giving it,  will  draw  the  land  after  it,  as  a  consequence  — 
nay,  it  would  do  it,  though  the  debt  were  forgiven  only  by 
parol ;  for  the  right  to  the  land  would  follow,  notwithstand- 
ing the  statute  of  frauds." 

3.  "  In  natural  justice  and  equity,  the  principal  right  of  the 
mortgagee  is  to  the  money,  and  his  right  to  the  land  is  only 
as  security  for  the  money."  ^ 

4.  Lord  Loughborough  says  :  — "  The  real  transaction  is 
an  assignment  of  a  debt  from  A.  to  B. ;  but  that  debt  is  col- 
laterally secured  upon  a  real  estate.  The  debt,  therefore,  is 
the  principal  thing."  ^ 

5.  Kent,  C.  J.,  says  :  —  "  Until  foreclosure,  or  at  least  until 
possession  taken,  the  mortgage  remains  in  the  light  of  a 
chose  in  action.  It  is  but  an  incident  attached  to  the  debt, 
and  in  reason  and  propriety  it  cannot  and  ought  not  to  be 
detached  from  its  principal.  The  mortgage  interest,  as  dis- 
tinct from  the  debt,  is  not  a  fit  subject  of  assignment,  (c) 

1  Itunyan  v.  Mcrscreaii,  1 1  Johns.  r)34  ;  "  Dougherty  v.  McColgan,  6  Gill  &  J. 

1  Tow.  252,  n.;  Kavland  r.  The  Justices,  275. 

&(.:,  10  (k>o.  05;  Calkins  v.  Calkins,  3  *  2  Burr.  978. 

Barb.  '505;  Fleet  v.  Yoiin-rs,  11  Wend.  °  Per  Fincli,  L.  K.,  Tliornbronj^h  v. 

525 ;  Warin;,'  v.  Smith,  2  Barl).  Cli.  1.35 ;  Baker,  Cas.  in  Cha.  1,  285. 

Kinna  v.  Smith,  2  Green,  Ch.  14  ;  Whit-  '^  J\Iatthc\vs  v.  Walhwn,  4  Vcs.  128  ; 

ncy  V.  French,  25  Verm.  f)G3.  Dudley  v.  Cadwell,  19  Conn.  218. 

-  Silvester  v.  Jarman,  10  Price,  84. 


(Jj)  Ev^n  a  qualified  imlorscment  of  a  note.  Stewart  v.  Preston,  1 
Branch,  10. 

(c)  The  assignment  of  a  mortgage,  witliout  the  debt,  creates  at  most 
a  naked  trust.     2  Story's  Eq.  1023,  n. 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  217 

It  has  no  determinate  value.  If  it  should  be  assigned,  the 
assignee  must  hold  the  interest  at  the  will  and  disposal  of 
the  creditor  who  holds  the  bond.  "  Accessorium  7ion  ducit, 
sed  sequitur  principaleJ^  ^  [d)     So  it  is  held,  that  if  a  mort- 

1  Jackson   v.  Willard,  4  Johns.  43;  man,  2  Halst.    Ch.    219;    Edwards   v. 

Wilson  V.  Troup,  2  Cow.  195  ;  McGan  Varick,  5  Denio,  664  ;  Bailey  v.  Gould, 

V.  Marshall,  7  Humph.  121;  Thayer  v.  Walk.  Ch.  478. 
Campbell,  9  Mis.  280 ;  Garroch  v.  Sher- 


((7)  The  generality  of  the  language  found  in  the  text  may  profitably  be 
limited  and  controlled  by  the  following  remarks,  -which  in  their  connection 
are  equally  true.  "  A  nftrtgagee,  especially  after  entry  for  foreclosure,  is 
considered  as  having  a  legal  estate,  which  may  be  alienated  and  transferred 
by  any  of  the  established  modes  of  conveyance,  subject  only,  until  fore- 
closure, to  be  redeemed  by  the  mortgagor."  Per  Shaw,  C.  J.,  Hunt  v.  Hunt, 
14  Pick.  379-380.  "By  force  of  the  mortgage  deed,  the  mortgagee  be- 
comes seized  of  the  estate,  and  the  mortgagor,  until  discharge  or  foreclosure 
of  the  mortgage,  is  quasi  tenant  at  will  of  the  mortgagee,  and  so  the  posses- 
sion of  the  mortgagor  is  that  of  the  mortgagee."  Ibid.  382.  So  in  regard 
to  the  possession  of  the  mortgagee,  it  is  said :  —  "  Although  a  mortgagee  may 
enter  at  any  time,  yet,  until  he  enters,  the  land  must  be  considered  as  be- 
longing to  the  mortgagor."  Per  Parker,  C.  J.,  Hatch  v.  Dwight,  17  Mass. 
299.  And  it  was  accordingly  held,  that  a  mortgagee,  as  soon  as  he  takes 
possession,  but  not  before,  may  maintain  an  action  against  one  who  erects  a 
dam,  whereby  an  ancient  mill-site  on  the  premises  is  rendered  useless  ;  and 
the  measure  of  damages  will  be  the  interest  on  the  value  of  the  site  or  priv- 
ilege, from  the  time  when  the  plaintiffs  right  of  action  accrued.  Hatch  v. 
Dwight,  17  ]VIass.  289.  "  If  any  new  act  or  ceremony  is  required,  in  order 
to  change  the  nature  of  the  estate  in  the  mortgagees,  or  to  give  them  a  new 
title,  their  entry  for  the  condition  broken  may  be  considered  as  such  act. 
They  do  in  fact  acquire  by  it  a  new  and  different  estate.  No  lapse  of  time, 
without  such  entry,  would  ever  give  them  an  absolute  estate.  Even  if  the 
mortgagee  enters  before  condition  broken,  no  length  of  possession  under 
such  an  entry  will  make  his  title  absolute.  The  mortgage  then  may  be 
considered  as  conveying  to  the  mortgagee  the  rents  and  profits  of  the  land,  to 
be  received,  if  there  be  no  agreement  to  the  contrary,  towards  the  discharge 
of  his  debt,  whether  the  condition  is  broken  or  not ;  and  also  as  transferring 
to  him  a  right  of  entry  for  the  condition  broken.  On  the  happening  of  that 
event,  if  he  thinks  proper  to  make  such  an  entry,  he  acquires  a  new  right 
to  the  land,  which  can  be  defeated  only  by  payment  of  the  debt,  within 
the  three  years  limited  by  the  statute."  Per  Jackson,  J.,  Goodwin  v.  Rich- 
VOL.   I.  19 


218  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

gage  given  to  secure  a  bond  is  assigned,  the  assignee  can 
maintain  no  action  upon  it,  unless  he  has  also  an  interest  in 
the  bond ;  because  he  can  have  no  conditional  judgment.^ 

6.  In  a  bill  for  foreclosure,  it  appeared  that  the  defendants, 
Bill  and  Crane,  on  the  26th  of  August,  1818,  mortgaged  to 
the  plaintiff  two  distinct  house  lots,  to  secure  the  purchase- 
money  of  one  of  them,  which  Avas  at  that  time  conveyed  to 
the  mortgagors.  The  mortgage  was  duly  recorded,  April  9, 
1817.  Bill  had  made  a  mortgage,  duly  recorded,  of  one  of 
the  lots,  to  Crane,  to  secure  $1,000.  September  22,  1818, 
this  mortgage  was  assigned  to  Fare,  of  whom  one  of  the 
defendants  is  administratrix,  and  claims  by  her  answer  a 
priority  over  the  plaintiff,  as  to  the  lot  contained  in  the  first 
mortffase.  Held,  such  claim  should  not  be  sustained.  The 
Court  say :  — "  The  interest  of  Crane,  as  mortgagee,  was 
not  at  the  time  of  the  execution  of  the  mortgage  to  the  plain- 
tiff, an  interest  in  the  land,  capable  of  being  the  subject  of 
sale,  either  absolutely  or  by  way  of  mortgage,  distinct  from 
the  debt  it  was  intended  to  secm-e.  It  does  not  appear  that 
the  debt  to  Crane  was  even  due,  when  the  mortgage  to  the 
plaintiff  was  executed ;  and  it  is  clearly  to  be  inferred  that 
the  mortgage  had  not  been  foreclosed,  or  possession  taken 
under  it.  Though  such  a  mortgage  interest  may  be,  by  way 
of  extinguishment,  absolutely  released  to  the  party  having 
the  equity  of  redemption,  yet  it  cannot  be  conveyed  as  a  still 
subsisting  interest,  by  way  of  mortgage,  because  that  would 
separate  the  debt  and  the  pledge,  the  latter  to  reside  in  one 
person,  while  the  debt  resided  in  another.  No  such  absolute 
release  was  intended  in  this  case ;  and  the  act  of  Crane,  in 
uniting  in  the  mortgage  with  Bill,  is  rather  to  be  referred  to 
the  legal  estate  which  he  derived  from  the  plaintiff,  than  to 

1  Webl)  V.  Flanders,  32  Maine,  175. 


ardson,  11  Mass.  474.  ^o  it  is  said,  the  mortgagor  has  the  legal  title  till 
foreclosure  or  entry.  Van  Duyne  v.  Thayer,  14  Wend.  235-236  ;  ace. 
Felch  V.  Taylor,  13  Tick.  139.     But  sec  Ritger  v.  Tarker,  8  Cush.  149. 


CII.  XI.]  ESTATE   OF   THE   MORTGAGEE.  219 

his  interest  as  such  a  mortgagee.  He  had  an  interest,  which 
he  was  capable  of  mortgaging,  and  which  he  no  doubt  in- 
tended to  mortgage,  and  the  mortgage  deed  can  have  full 
operation  by  being  applied  to  that  interest.  It  cannot  be 
applied  to  his  interest  as  a  mortgagee  in  the  other  lot, 
because  he  had  no  interest,  in  that  character,  capable  of 
alienation,  so  long  as  he  retained  the  debt."  Decreed,  that 
all  the  premises  be  sold,  with  a  reservation  of  the  junior  right 
of  the  administratrix,  to  the  proceeds  of  the  lot,  the  mortgage 
of  which  was  assigned  to  her  intestate.^ 

7.  In  Jackson  v.  Bronson,^  which  was  an  action  of  eject- 
ment, the  plaintiff,  to  prove  his  title,  offered  in  evidence  a 
deed  to  him  from  Earl,  and  showed  that  the  defendant  was  in 
possession  of  a  part  of  the  land  thus  conveyed.  The  defend- 
ant proved  a  mortgage  from  the  plaintiff  to  Earl  of  the  whole 
lot,  to  secure  a  certain  sum  to  the  estate  and  to  indemnify 
Earl,  and  a  deed  from  Earl  to  the  defendant  of  the  premises 
in  question.  It  was  held,  that  the  action  should  be  main- 
tained, upon  the  ground  that  the  mortgage  was  a  mere 
incident  to  the  debt  which  it  was  meant  to  secure,  and  an 
absolute  deed  of  the  land  by  the  mortgagee  was  a  mere 
nullity. 

8.  In  another  case,  Mr.  Justice  Kent  remarks,  that  the 
estate  in  the  land  is  the  same  thing  as  the  money  due  on 
the  note  ;  is  liable  to  debts  ;  goes  to  executors  ;  passes  by  a 
wiU  not  conformable  to  the  statute  of  frauds ;  {e)  is  trans- 
ferred or  extinguished  by  an  assignment,  or  even  a  parol 

1  Aymar  v.  Bill,  5  Johns.  Ch.  570,  571,  572.  See  Jackson  v.  Mvers,  11  Wend. 
533;  Olmsted  y.  Elder,  1  Seld.  144;  Raymond  v.  Raymond,  7  Cush.  605. 

2  19  Johns.  325. 


(<?)  The  interest  of  the  mortgagee  is  held  not  to  be  within  the  statute  of 
frauds,  for  the  reason  that  it  is  a  mere  incident  to  the  debt,  has  no  value 
independent  of  the  debt,  and  cannot  be  separated  from  it.  Southerin  v. 
Mendum,  5  N.  H.  432.  It  is  said,  that  as  a  general  principle,  the  rights  of 
parties,  growing  out  of  the  assignment  of  debts  secured  by  mortgage,  will 
be  governed  by  the  law  of  the  place  where  the  assignment  is  made.  Bank, 
&c.  V.  Tarleton,  23  Miss.  173. 


220  THE  LAW   OF  MORTGAGES.  [CH.  XI. 

forgiving  of  the  debt.  The  land  is  but  appurtenant  to  the 
debt.  Whoever  owns  the  latter,  is  likewise  owner  of  the 
former.  There  must  be  something  peculiar  in  the  case, 
some  very  special  provision  of  the  parties,  to  induce  the 
Court  to  separate  the  ownership  of  the  note  from  that  of 
the  mortgage.  In  the  eye  of  common  sense  and  of  justice, 
they  will  generally  be  united.  Upon  these  grounds  Judge 
Kent  held,  that  the  delivery  of  a  mortgage,  accompanying 
the  indorsement  of  a  note,  which  it  was  made  to  secure, 
passed  the  mortgage  as  well  as  the  note.  Mr.  Justice  Rad- 
cliff,  on  the  other  hand,  held,  that  the  legal  title  to  the  land 
did  not  pass  ;  although  the  assignee  acquired  an  equitable 
interest  which  a  court  of  equity  would  sustain  ;  that  although 
as  betiveen  mortgagor  and  7nortgagee,  the  mortgage  was  to 
be  regarded  as  personal  estate,  so  as  to  pass  to  executors,  or 
be  extinguished  by  payment  of  the  debt ;  yet  it  could  not  be 
so  regarded,  in  reference  to  a  transfer  to  third  persons.  In  a 
subsequent  case.  Judge  Kent  adheres  to  his  former  doctrine, 
that  at  law,  as  well  as  in  equity,  the  mortgage  is  regarded 
as  a  mere  incident  attached  to  the  debt.^ 

9.  In  New  Jersey  it  has  been  held,  that  the  principle  above 
stated  does  not  dispense  with  the  necessity  of  a  formal  as- 
signment of  the  mortgage  to  one  who  pays  and  takes  up  the 
personal  security,  in  order  that  he  may  defend  against  a  suit 
for  the  land  by  the  mortgagor.  And  where  an  informal  as- 
signment was  first  taken,  another  formal  assignment,  made 
after  commencement  of  suit,  will  be  ineffectual  as  a  defence 
to  the  action.  In  such  case,  the  mortgagee  holds  the  mort- 
gage in  trust  for  the  party  who  pays  the  debt,  but  the  latter 
has  no  legal  title.^  (/) 

1  Johnson  v.  Hart,  3  Johns.  Cas.  320,  son  v.  Willard,  4  Johns.  43  ;  Runyan  v. 
330 ;  Green  v.  Hart,  1  Johns.  580  ;  Jack-     Mersereau,  11  Johns.  534. 

2  Den  V.  Dimon,  5  Halst.  156. 


(/)  In  the  same  State,  it  is  held,  that  the  mortgage  and  debt  may  be 
separated  ;  the  lien  may  be  surrendered  by  other  transactions,  and  the  debt 
still  remain.     Clark  v.  Smith,  Saxt.  121.    Bond  and  mortgage.     Tiic  mort- 


en.  XI.]  ESTATE    OF   THE   MORTGAGEE.  221 

10.  It  will  be  observed,  that  in  the  remarks  and  decisions 
above  cited,  as  to  the  personal  nsitwce  of  a  mortgage,  and  its 
legal  identity  with  the  debt  which  it  is  made  to  secure,  fre- 
quent reference  is  had  to  the  mode  of  transferring  or  assign- 
ing mortgages.  The  prevailing  doctrine  upon  this  subject 
undoubtedly  is,  that  an  assignment  of  the  debt  carries  the 
mortgage  with  it.  This  rule,  however,  is  by  no  means  uni- 
versal, and  is  subject  to  various  qualifications  in  the  different 
States  of  the  Union. 

11.  In  New  York,  as  has  been  already  seen,  it  has  been 
often  recognized  in  the  earlier  cases.  So,  it  has  been  lately 
held,  thaf  an  assignment  of  a  mortgage  by  an  individual  or 
corporation,  without  seal,  passes  the  mortgage  debt.^ 

11  a.  So,  an  assignment  of  a  judgment  for  part  of  a  debt 
secured  by  mortgage,  "  with  full  power  to  take  all  necessary 
proceedings  for  its  recovery,"  is  an  assignment  of  the  debt, 
and  carries  an  interest  in  the  mortgage  pro  tanto? 

12.  In  INIassachusetts,  no  interest  in  a  mortgage  deed  can 
be  transferred  or  assigned,  without  a  wiritten  and  sealed  in- 
strument. Thus,  one  Earle,  holding  a  mortgage  from  Ad- 
ams, to  secure  six  notes,  on  the  20th  of  November,  1815, 
deposited  with  a  scrivener  two  of  the  notes  and  the  mort- 
gage, for  the  purpose  of  having  an  assignment  made  to 
Warden,  as  security  for  the  debt  due  from  Earle  to  him. 
November  27th,  Earle  indorsed  one  of  the  notes  to  Hamil- 

1  Gillett  V.  Campbell,  1   Denio,  520.  ^  pattison  v.  Hull,  9  Cow.  747. 

See  Green  v.  Hart,  I  Johns.  580. 


gage  is  invalid  without  the  bond,  unless  it  be  shown  that  the  mortgagee  is 
entitled^  to  jiossession  of  it.  So,  in  case  of  an  assignee  of  the  mortgage. 
Garroch  v.  Sherman,  2  Halst.  Ch.  219. 

Mortgage  to  secure  several  bonds,  which  the  mortgagee  assigns  to  differ- 
ent persons,  also  assigning  the  mortgage  to  one  of  them.  Held,  pro  tanlo, 
an  assignment  of  the  mortgage  to  each.     Stevenson  v.  Black,  Saxt.  338. 

Also,  that  if  the  assignee  of  the  mortgage  and  one  of  the  bonds  purchase 
the  equity  of  redemption,  the  mortgage  is  extinguished  to  the  extent  of  such 
bond,  but  not  as  to  the  others.     lb. 

19* 


222  THE  LAW   OF  MORTGAGES.  [CH.  XI. 

ton,  as  part  security  for  a  debt,  and  assigned  the  mortgage 
and  the  mortgaged  premises  to  Hamilton,  by  deed  duly  ac- 
knowledged and  recorded  the  same  day.  November  28th, 
Earle  made  an  assignment  of  the  mortgage,  by  a  writing 
upon  the  instrument  itself,  to  Warden,  to  secure  his  claim 
and  some  others  for  which  he  was  liable.  The  assignment 
was  not  acknowledged  or  recorded.  The  mortgage  and  the 
two  notes  still  remained  in  the  scrivener's  hands.  Hamilton, 
at  and  before  the  time  of  taking  his  assignment  of  the  mort- 
gage, knew  that  the  mortgage  had  been  left  with  the  scriv- 
ener for  the  purpose  aforesaid.  Held,  upon  these  facts,  the 
title  of  Hamilton  must  prevail.  The  Court  remarked  as  fol- 
lows :  —  "  By  force  of  our  statutes,  regulating  the  transfer  of 
real  estates,  and  for  preventing  frauds,  no  interest  passes  by 
a  mere  delivery  of  a  mortgage  deed,  without  an  assignment 
in  writing  and  by  deed.  An  assignment,  made  by  a  sep- 
arate deed,  without  the  delivery  over  of  the  original  mort- 
gage deed,  conveys  all  the  interest  of  the  mortgagee,  and 
makes  the  grantee  the  assignee  of  the  mortgagee."  Nor  did 
the  knowledge  of  Hamilton,  as  to  the  intended  assignment 
to  Warden,  affect  his  title,  any  more  than  if  he  had  known 
that  another  creditor  had  taken  incipient  measures  to  attach 
the  premises,  and  by  his  vigilance  had  obtained  a  prior  lien.^ 

13.  But  in  the  same  State  it  is  held,  that  where  a  subse- 
quent legal  transfer  of  a  mortgage  is  attended  with  any  cir- 
cumstances of  fraud.)  even  a  court  of  law  will  not  sustain  an 
action  by  such  assignee,  against  a  title  of  the  defendant 
arising  under  a  prior  delivery  of  the  note  and  mortgage,  of 
which  the  plaintiff  had  notice. 

14.  Haven  and  Hemmenway,  the  administrators  of  a  de- 
ceased mortgagee,  in  making  a  settlement  with  Valentine, 
the  guardian  of  his  heirs,  passed  into  his  hands  certain  notes, 
including  the  mortgage  note,  and  also  the  mortgage  deed. 
The  notes  were  not  indorsed,  nor  the  mortgage  assigned  in 
writing,  but  the  administrators  gave  Valentine  a  power  of 

1  Warden  v.  Adams,  15  Mass.  233,  236,  237. 


CH.  XI.]  ESTATE   OF  THE  MORTGAGEE.  223 

attorney  to  -act  in  their  names,  in  order  to  enable  him  to 
realize  the  full  benefit  of  the  effects  put  into  his  hands. 
Valentine  entered  for  breach  of  condition  of  the  mortgage. 
The  plaintiff',  a  subsequent  mortgagee,  produced  a  discharge 
of  the  first  mortgage,  made  by  Haven,  the  surviving  admin- 
istrator, many  years  after  the  assignment  to  Valentine.  The 
defendant  claimed  under  a  lease  from  Valentine,  made 
under  a  power  of  attorney  from  the  heirs  of  the  first  mortga- 
gee, who  had  become  of  full  age.  The  plaintiff"  had  notice 
of  the  assignment  to  Valentine.  It  was  held,  that  the  de- 
livery of  the  securities  and  the  power  of  attorney  vested  in 
Valentine  an  equitable  title,  which  could  not  be  defeated  by 
the  fraudulent  transaction  above  stated,  between  the  plain- 
tiff" and  Haven ;  and  that  Valentine,  under  the  circum- 
stances, might  legally  have  received  the  debt,  delivered  up 
the  note,  and  cancelled  the  mortgage  ;  and  the  action,  which 
was  assumpsit  for  use  and  occupation,  -was  not  sustained.^ 

15.  Li  New  Hampshire  it  is  held,  that  the  delivery  of  a 
note,  payable  to  bearer  and  secured  by  mortgage,  passes  the 
mortgage  also,  both  in  law  and  equity .^  And  a  parol  ti-ans- 
fer  of  the  debt  and  mortgage  is  good,  until  proceedings  have 
been  had  to  enforce  the  mortgage.  The  assignee  may  sue 
in  his  own  name,  though  he  could  not  upon  the  debt.  And 
the  mortgagee  cannot  maintain  an  action  where  the  assignee " 
can.^ 

16.  In  the  case  of  Bell  v.  JNIorse,*  Richardson,  Ch.  J., 
says: — "Under  certain  circumstances,  a  conveyance  of  the 
land  by  a  mortgagee  will  pass  the  debt  secured.  But  there 
are  certain  cases  in  which  a  deed  of  the  land  by  the  mortga- 
gee wiU  pass  nothing.  Thus,  if  the  mortgagee  has  trans- 
ferred the  note,  he  cannot  aftersvards  convey  the  land.  It  is 
not  enough  to  show  a  deed  from  a  mortgagee,  in  order  to 
prove  that  the  land  passed,  but  it  must  be  made  to  appear 
that  the  debt  passed  to  the  grantee.     At  least,  it  must  ap- 

1  Cutler  V.  Haven,  8  Pick.  490.  *  6  N.  H.  210 ;  Whittemore  v.  Gibbs, 

-  Southerin  r.  Mcndum,  5  N.  PI.  420.         4  Fost.  484. 
'^  Eigney  v.  Lovcjoy,  13  N.  H.  247. 


224  THE   LAW   OP   MORTGAGES.  [CH.  XI. 

pear  that  the  mortgagee  had  a  right  to  transfer  the  debt. 
As  no  account  is  given  of  the  debt,  the  tenant  is  not  entitled 
to  hold  the  land  against  the  demandant." 

17.  In  another  case  in  the  same  State  it  is  held,  that  the 
interest  of  a  m.ortgagee  is  not,  in  fact,  real  estate ;  but  he  is 
entitled  to  have  it  treated  as  such,  so  far  as  necessary  to 
enable  him  to  prevent  waste,  and  a  diminution  of  the  value 
of  the  land,  or  to  receive  the  rents  and  profits  ;  and  to  give 
him  the  full  benefit  of  his  security,  and  proper  remedies  for 
any  violation  of  his  rights.  But  not  to  enable  him  to  sell 
and  convey  his  mortgage  interest.  In  this  respect,  the  mort- 
gage is  a  mere  chattel,  and  can  be  transferred  only  with  the 
debt.  The  mortgagee's  deed,  alone,  without  foreclosure  or 
entry,  and  purporting  to  convey  the  land  only,  wiU  not  pass 
the  debt,  and,  therefore,  will  not  pass  the  mortgagee's  in- 
terest. Whether  it  would,  if  it  appeared  that  he  had  pos- 
session and  control  of  the  debt  or  of  the  land,  at  the  time. 


quccre 


Yl  a.  In  later  cases  it  is  held,  that  after  a  mortgagee  has 
entered,  his  deed  will  transfer  his  right  of  possession  to  the 
grantee,  who,  by  virtue  of  it,  may  defend  against  a  writ  of 
entry  by  the  mortgagor.^  But  a  deed  before  entry  will  con- 
vey no  interest,  unless  the  debt  be  transferred ;  notwith- 
standing an  entry  by  the  grantee.  So,  in  other  cases,  that 
a  quitclaim  deed  by  a  mortgagee  will  convey  no  title,  unless 
the  mortgagee  has  entered,  or  the  debt  is  transferred.^  In 
the  same  cases  the  question  is  suggested,  whether  a  deed  of 
the  land,  with  warranty,  wiU  transfer  the  debt.'*  So,  if  a 
mortgage  be  conditioned  for  the  payment  of-  money,  and 
there  be  no  other  secm*ity  for  the  debt  than  the  mortgage, 
whether  a  deed  of  the  land  will  transfer  the  debt.  But 
where  a  mortgage  was  made  to  indemnify  the  mortgagee,  as 
surety  upon  a  bond  for  the  mortgagor,  and  the  mortgagee 
made  a  settlement  with  the  obligee,  to  which  the  mortgagor 

1  Ellison  V.  Daniels,  11  N.  11.  274;  •' Wciks  v.  Eaton,  15  N.  li.  145; 
Parisii  V.  Gilmanton,  11).  298.  Fiirbush  v.  Goodwin  5  Fost.  425. 

-  Smith  V.  ymitli,  15  N.  II.  55.  '^  lb. 


CH.  XI.]  ESTATE   OP  THE  MORTGAGEE.  225 

was  a  party,  and  paid  him  the  sum  of  $500 ;  and  then,  not 
having  entered,  released  all  his  interest  in  the  premises,  but 
made  no  transfer  of  the  debt ;  held,  his  deed  conveyed  no 
title.i 

17  b.  A  mortgagee  gave  a  quitclaim  deed,  purporting  to 
convey  his  interest  in  the  l9,nd,  and  the  consideration  ex- 
pressed was  paid  for  the  mortgage  interest,  and  the  parties 
believed,  at  the  time,  that  the  mortgagee's  interest  in  the 
mortgage  and  the  debt  would  pass.  Held,  nothing  passed 
by  the  deed.^ 

18.  In  Maine,  it  is  said,^ — "A  mortgagee,  before  he  can 
obtain  his  conditional  judgment,  must  file  or  produce  in 
Court  the  bond  or  note  on  which  the  mortgage  is  founded ; 
that  the  Court  may  know  what  payments  have  been  made, 
and  how  much  is  due  in  equity  and  good  conscience.  For 
such  sum  only  can  the  conditional  judgment  be  rendered ; 
and  if  all  the  debt  has  been  paid,  or  if  the  mortgagee  has 
assigned  the  bond  or  note  for  a  full  consideration,  there  is  no 
reason  why  he  should  have  any  judgment,  though  he  never 
has  assigned  the  mortgage."  Mellen,  C.  J.,  further  re- 
marks :  — "  The  principles  of  law  upon  this  point  have  never 
been  carried  so  far "  (as  in  New  York)  "  in  Massachusetts, 
or  in  this  State.  Our  statute  of  1821,  ch.  36,  seems  decisive 
of  this  question ;  and  to  require  that  the  assignment  of  a 
mortgage  should  be  made  by  deed.  The  form  of  declaring 
in  an  action  by  the  assignee  of  a  mortgage  against  a  mort- 
gagor shows  this  ;  it  is  always  alleged,  that  by  the  mortgage 
the  mortgagee  became  seized  in  fee ;  this  very  averment 
shows  that  such  an  estate  cannot  be  conveyed  to  the  as- 
signee but  by  deed." 

19.  In  the  same  State  it  has  since  been  held,  that  the 
assignment  of  a  debt  by  an  instrument  not  under  seal  does 
not  pass  the  mortgage.*     Also,  that  where  the  debt  has  been 

1  Weeks   i'.   Eaton,   15   N.   H.   145;        ^  per  Mellen,  C.  J.,  Vose  v.  Handy, 
Furbush  v.  Goodwin,  5  Fost.  425.  2  Greenl.  332,  333. 

2  Furbush  v.  Goodwin,  5  Fost.  425.  *  Smith   v.   Kelley,  27   Maine,  237  ; 

Dockray  v.  Noble,  8  Greenl.  278. 


226  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

assigned,  without  the  mortgage,  a  tender  should  be  made  to 
the  mortgagee,  not  to  the  holder  of  the  debt.^  So,  that  the 
transfer  of  a  note  secured  by  mortgage,  does  not,  at  law, 
assign  the  mortgage.^  So,  where  notes  secured  by  mortgage 
have  become  the  property  of  different  persons,  and  there  has 
been  a  foreclosure,  the  assignee  of  the  mortgage  holds  the 
property  and  the  net  rents  and  profits,  in  trust  for  the  owners 
of  the  notes,  in  proportion  to  then-  respective  amounts.  And 
a  holder  of  a  note  may  recover,  in  equity,  his  proportionate 
part  thereof,  from  such  assignee,  who,  as  well  as  his  as- 
signor, the  assignee  of  the  mortgagee,  had  notice  of  the 
plaintiff's  title,  without  regard  to  the  price  paid  by  him  for 
the  note.  The  mortgage  and  notes  create  and  tnanifest  the 
trust,  within  the  Rev.  Sts.  ch.  91,  §  Sl.^ 

20.  In  Vermont,  a  parol  assignment  of  the  debt  passes  the 
mortgage,*  even  though  the  assignee  did  not  know  of  its  ex- 
istence.^ (g)  The  mortgagee  holds  in  trust.*^  If  only  a  part 
of  the  notes  are  assigned,  the  assignee  becomes  interested  in 
the  mortgage  pro  rata.''  But  this  has  been  held  to  depend 
upon  the  intention  of  the  parties.^  If  one  of  several  notes  is 
assigned,  and  the  others  are  subsequently  assigned  with  the 
mortgage,  all  the  assignees  still  have  an  equal  claim  to  the 
benefit  of  the  security.^  But  if  the  first  assignee  tender  pay- 
ment of  the  other  notes,  and  claim  a  transfer  of  the  secu- 
rity, this  is  a  waiver  of  his  prior  title ;  though  he  may  still 
enforce  it  against  the  mortgagor  and  those  claiming  under 
him.io 

21.  The  holder  of  the  first  note  brings  a  bill  against  the 

1  Smith   V.   Kcllcy,  27    Maine,   237;         '' Keycs  v.  Wood,  21  Verm.  331. 
Dockray  v.  Noble,  8  Greenl.  278.  ^  Iliid. 

'■^  Dwinel  v.  Pcrley,  32  Maine,  197.  '  Ibid. 

2  Johnson  v.  Candage,  31   Maine,  (1         '^,  Laiitidon  v.  Keith,  9  Verm.  299. 
lied.)  28.  •  5  IJrldiiig  V.  Manly,  21  Verm.  550. 

4  Tratt  n.  Bank,  &c.,  10  Verm.  294.  i"  Il)id. 


(g)  So,  an  assignment  by  the  mortgagee  of  liis  interest,  passes  the  riglit  to 
receive  payment  of  the  notes.  Indorsement  of  the  latter  is  unnecessary,  if 
honnfide  sold  and  delivered.     King  v.  Ilarring,  2  Aik.  33. 


en.    XI.]  ESTATE   OF   THE   MORTGAGEE.  227 

mortgagor  and  his  assignees  and  the  holder  of  the  other 
notes,  who  has  also  taken  a  subsequent  mortgage  of  the  land. 
Held,  upon  paying  to  the  holder  the  amount  of  the  other 
notes,  the  plaintiff  might  enfore  his  lien  upon  the  whole  land, 
against  all  the  defendants,  as  security  for  all  the  notes.' 

21  a.  Mortgage  to  A.  to  secure  five  notes.  A.  assigns  to 
B.  two  of  the  notes,  and  a  corresponding  portion  of  the  mort- 
gage, to  hold  till  payment  thereof,  B.  covenanting  upon  pay- 
ment to  give  up  to  A.  "  all  and  singular  the  remainder  "  (of 
the  mortgaged  premises.)  A.  afterwards  assigns  to  C.  two  of 
the  other  notes,  and  his  remaining  interest  in  the  mortgaged 
property.  B.  recovers  a  judgment  upon  the  mortgage,  and  C. 
brings  a  process  for  partition.  Held,  B.  was  entitled  only 
to  a  portion  of  the  premises,  corresponding  in  value  with 
his  notes.     Partition  ordered  accordingly.^ 

22.  In  Connecticut,  an  assignment  of  the  debt  passes  the 
mortgage,  so  that,  upon  the  mortgagee's  death,  no  interest  in 
the  estate  goes  to  his  administrator.^  So,  an  assignment  of 
the  mortgage  and  subsequent  delivery  of  the  notes  vest  the 
mortgage  title  in  the  assignee.* 

22  a.  Mortgage  from  A.  to  B.,  to  secure  him  for  certain  in- 
dorsements. Upon  A.'s  failure  to  pay  the  notes,  B.  paid 
them  by  his  own  notes  indorsed  by  C,  leaving  A.'s  notes  still 
in  the  bank,  where  they  were  originally.  B.  also  failing  to 
to  pay  his  notes,  they  were  satisfied  by  a  sale  of  C.'s  property 
on  execution.  Upon  the  commencement  of  suit  against  C, 
B.  delivered  to  him  A.'s  mortgage,  and  assigned  all  his  in- 
terest in  the  property,  taking  back  a  defeasance  ;  but  A.'s 
no^es  were  not  delivered  to  C.  C.  brings  a  bill  in  equity  for 
the  benefit  of  the  security  given  to  B.  Held,  the  effect  of 
the  transaction  was  to  be  determined  by  the  intention  of  the 
parties,  as  gathered  from  their  situation,  from  the  subject- 
matter,  and  the  words  used;  all  which  showed  a  purpose  to 


1  Bclding  V.  Manly,  21  Verm.  55.  ^  Crosby  v.  Brownson,  2  Day,  425  ; 

2  Wright  V.  Parker,  2  Aik.  212.  ace.  Lawrence  v.  Knapp,  1  Root"  248.^ 

*  Dudley  v.  Cad  well,  19  Conn.  218. 


228  THE  LAW   OF  MORTGAGES.  [CH.  XI. 

assign  the  notes,  without  which  the  transfer  of  the  mortgage 
would  be  unavailing ;  and  the  bill  was  sustained.' 

23.  In  this  State,  with  reference  to  the  general  principle, 
that  the  mortgage  is  a  mere  incident  to  the  debt,  it  has  been 
remarked,^  — "  This  doctrine,  both  ancient  and  uniform,  is 
founded  in  a  view  of  the  subject,  not  in  its  form  or  superfi- 
cies, but  by  penetration  to  the  core,  and  regarding  the  con- 
tract of  the  parties,  in  its  substance  and  intent.  It  was  in- 
tended as  a  security  only,  and  not  as  a  sale.  The  equitable 
doctrine,  concerning  the  rights  of  mortgagor  and  mortgagee, 
has  gradually  been  naturalized  in  the  common-law  code  ; 
and  by  the  adoption  of  principles  long  established  in  chan- 
cery, and  tenaciously  adhered  to,  the  suitors  are  not  driven 
from  one  bar,  at  increased  litigation  and  expense,  to  obtain 
infallible  relief  at  another." 

24.  In  the  case  of  Clark  v.  Beach,^  from  which  these  re- 
marks are  taken,  it  was  further  said  by  Hosmer,  C.  J.,  (who 
dissented  from  the  Court,  in  their  judgment  upon  that  case,) 
with  particular  reference  to  the  effect  of  an  entry  by  the 
mortgagee,  upon  the  previous  rights  of  himself  and  the  mort- 
gagor :  —  "  There  is  nothing  in  the  nature  of  this  fact  per  se 
(^possession  by  the  mortgagee)  that  adds  to  the  mortgagee's 
title,  or  the  title  of  any  other  person.  Before  entry,  the 
grantee  of  land,  except  where  possession  is  requisite  to  com- 
mence a  right,  has  title,  not  enlarged  by  subsequent  occupa- 
tion ;  as  such  occupation  confers  not  any  right,  but  merely 
gives  the  enjoyment  of  a  right  antecedent.  After  possession, 
just  as  before,  the.  estate  mortgaged  is  a  pledge  only;  the 
relation  of  creditor  and  debtor  exists ;  the  equity  of  redemp- 
tion is  unimpaired ;  or  if  the  law-day  has  not  elapsed,  the 
payment  of  the  debt  annihilates  all  the  rights  of  the  mort- 
gagee. All  this  is  true,  until  foreclosure  is  effected.  Then 
it  is,  that  the  mutual  relation  of  the  parties  becomes  changed. 
The  mortgaged  premises,  by  a  legal  appropriation  thereof, 

1  Bulklcy  ;;.  Chapman,  9  Conn.  5.  ^  g  Conn.  159.     See  Norwich  v.  Hub- 

^  Per  Ilosmcr,  C.  J.,  Clark  v.  Bcacli,     bard,  22  Conn.  587. 
6  Conn.  1.59. 


CH.  XI.]  ESTATE   OF  THE  MOETGAGEE.  229 

are  lost  to  the  mortgagor  forever ;  and  the  mortgagee  has 
become  tenant  in  fee-simple." 

25.  The  same  Judge  remarked  in  another  case  :  ^  —  "  The 
mortgagee,  before  entry  or  foreclosure,  has  at  most  a  chose  in 
action  and  a  right  to  the  possession,  in  order  to  render  the 
mortgage  available  to  the  payment  of  his  debt." 

26.  But  the  Court  of  that  State,  by  a  majority  of  its  judges, 
seems  to  have  adopted  a  view  of  this  subject  somewhat  dif- 
ferent from  that  above  stated,  which  is  undoubtedly  the  pre- 
vailing rule  of  the  law.  They  say,  "  The  mortgagee  is  well 
seized  against  the  mortgagor,  and  certainly  against  all  stran- 
gers, so  as  to  enable  him  to  maintain  trespass  or  ejectment. 
This  right  of  the  mortgagee  appears  essential  to  the  protec- 
tion of  the  pledge ;  and  without  it,  he  would  be  without 
security,  —  his  pledge  would  be  useless." 

27.  In  the  case  of  Clark  v.  Beach,^  the  defendant  in  an 
action  of  trespass  justified  under  the  license  and  authority  of 
a  third  person,  who  was  alleged  to  be  "  the  true  and  lawful 
owner  of  the  land,  and  was  lawfully  seized  and  possessed 
thereof ; "  and,  to  sustain  the  plea,  offered  in  evidence  a 
mortgage  to  such  third  person  from  an  owner  of  the  land. 
It  appeared,  that  the  mortgage  had  been  forfeited,  and 
possession  surrendered  by  the  mortgagor  to  the  mortgagee 
before  commission  of  the  trespass ;  and  that  at  that  time  the 
mortgagee  was  in  possession.  The  equity  of  redemption, 
however,  still  remained  in  the  mortgagor.  It  was  held  by 
the  Court,  (Hosmer,  C.  J.,  dissenting,)  that  the  defence  was 
sufficient.  This  decision  rested  upon  the  ground  of  lawful 
ownership  and  seizin  of  the  mortgagee  for  the  purposes  of 
this  case,  and  also  upon  a  statute,  which  provided,  that  in 
cases  of  this  nature,  the  defendant  should  pay  treble  dam- 
ages and  cost,  unless  he  should  make  out  a  title  paramount 
to  that  of  the  plaintiffs  the  plaintiff  having  proved  no  title 
whatever  in  himself. 


1  Huntington  v.  Smith,  4  Conn.  237.  3  5  Conn.  151. 

'^  Clark  !;.  Beach,  6  Conn.  151.  ^ 

VOL.  I.  20 


230  THE  LAW   OF  MORTGAGES.  [CH.  XI. 

28.  In  Pennsylvania,  where  a  mortgagee  transfers  the  ob- 
ligation which  the  mortgage  was  made  to  secure,  an  entry 
of  satisfaction  by  him  will  not  discharge  it  in  favor  of  a  prior 
purchaser,  as  against  the  assignee  of  the  obligation;  but 
such  assignee  may  bring  an  action  on  an  exemplification  of 
the  mortgage,  upon  which  satisfaction  is  indorsed.  It  is 
otherwise  in  case  of  a  subsequent  bond  fide  purchaser  of  the 
estate,  having  notice  of  the  entry  of  satisfaction,  and  not  of 
the  assignment.^ 

29.  In  the  same  State,  in  the  case  of  Donley  v.  Hays,^  it 
was  held,  that  where  several  bonds  are  secured  by  mortgage, 
a  part  of  which  are  assigned  by  the  mortgagee  at  different 
times  and  to  different  persons,  and  the  premises  are  after- 
wards sold  on  an  execution  in  favor  of  the  mortgagee  against 
the  mortgagor ;  the  price  shall  be  applied  to  all  the  bonds 
yro  rata.)  including  those  which  the  mortgagee  himself  re- 
tains ;  that  the  rule,  "  qui  prior  in  tempore,  potior  est  iiijure" 
did  not  apply,  except  in  case  of  successive  charges  upon  the 
same  property,  whereas  in  this  case  the  several  bonds  were 
distinct  things ;  and  great  uncertainty  and  fraud  might  re- 
sult from  allowing  an  inquiry  into  the  respective  dates  of  the 
assignments.  It  was  further  held,  that  the  mortgagee  should 
have  an  equal  right  with  the  other  bond-holders,  because  the 
assignments  involved  no  transfer  of  the  mortgage  except  by 
implication,  and  no  warranty,  express  or  implied. (A) 

30.  In  Indiana,  a  deed  is  necessary  to  pass  the  legal  title 

1  Roberts  V.  Halstcad,  9  Barr,  32.  *-  17  S.  &  R.  400. 


(/i)  From  this  opinionof  a  majority  of  the  judges,  Gibson,  C.J.,,  dissented, 
upon  the  grounds,  that  the  assignments  imposed  a  moral  obligation  upon  the 
mortgagee,  which  equity  would  enforce,  though  not  a  legal  one ;  that  as  the 
debt  was  the  principal  and  the  mortgage  an  accessory,  the  assignment  of  a 
part  of  the  debt  was  an  assignment  of  the  mortgage,  not  pi^o  rata,  but  pro 
tanto,  and  the  assignees  purchasers  of  all  the  sccuriiics  of  the  mortgagee,  to 
be  used  by  them  as  freely  and  beneficially  as  by  him. 


CH.  XI.]  ESTATE   OF  THE   MORTGAGEE.  231 

of  the  mortgagee ;  ^  but  a  sale  of  the  note  passes  the  mort- 
gage in  equity .2  So,  in  Missouri.-^  So,  in  Ohio,  where  the 
mortgage  is  delivered.*  So,  in  Michigan,  or,  if  a  part  only 
of  the  mortgage  notes  are  assigned,  a  proportional  interest 
in  the  mortgage.-^ 

31.  A  mortgagee  by  deed  granted  and  transferred  his  in- 
terest in  the  mortgage  and  the  land,  with  authority  to  the 
grantee  to  collect  the  debt  in  the  mortgagee's  name,  to  the 
grantee's  use.  Held,  a  bargain  and  sale  of  the  land,  which 
passed  the  use,  and  the  statute  transferred  the  possession ; 
that  the  mortgagee  retained  the  legal  title  to  the  debt,  but 
the  equitable  interest  vested  in  the  grantee,  and  he  might 
collect  it  in  the  mortgagee's  name,  for  his  own  use.^ 

32.  Held,  also,  that  the  mortgagee  could  not  maintain 
ejectment.'' 

33.  A  bill  in  equity  for  foreclosure  alleged,  that  the  mort- 
gagee had  for  value  received  assigned  and  indorsed  to  the 
complainant  the  note,  to  secure  which  the  mortgage  was 
made,  and  ordered  the  payment  to  be  made  to  him,  and 
delivered  the  mortgage  deed  to  him.  Held,  a  sufficient 
description  of  the  assignment.^ 

34.  Where  several  notes,  secured  by  one  mortgage,  and 
falling  due  at  different  times,  are  assigned  to  different  per- 
sons; those  first  assigned  without  the  mortgage,  and  the 
others  wdth  the  mortgage,  the  last  falling  due  first,  and  the 
latter  assignee  having  no  notice  of  the  first  assignment ;  they 
shall  be  paid  from  the  proceeds  of  the  property  in  the  order 
in  which  they  fall  due.^ 

35.  In  Illinois,  no  title  to  the  mortgage  will  pass  by  an 
assignment  of  the  debt,  which  is  not  bond  fide  as  to  the  debt 
itself.  Certain  promissory  notes,  secured  by  mortgage,  were 
made  payable  to  the  administrator  and  administratrix  of  an 

1  Givan  v.  Tout,  7  Blackf.  210.  See  ^  Cooper  r.  Ulmann,  Walk.  Cli.  251. 
Cleanvater    v.    Rose,    1    Blackf.    137;         ^  7  Bi^ckf.  210. 

Blair  v.  Bass,  4  Blackf.  539.  ■?  Ibid. 

2  Burton  v.  Baxter,  7  Blackf.  297.  ^  Slaughter  r.  Foust,  4  Blackf.  379. 
3Labergc  v.  Chauvin,  2  Mis.  179.  ^  State  Bank  v.  Tweedy,   8   Blackf. 
*  Paine  t'.  French,  4  Ham.  318.  447. 


232  THE  LAW   OP  MORTGAGES.  [CH.  XI. 

estate.  The  latter  afterwards  married,  and  the  husband 
obtained  the  notes  without  any  assignment  or  indorsement 
upon  them,  and  transferred  them  to  a  creditor  of  his  own,  as 
collateral  security,  the  proceeds  to  be  applied  to  the  debt. 
Held,  the  circumstances  were  sufficient  to  put  the  assignee 
upon  inquiry ;  that  he  took  subject  to  the  claims  of  the  right- 
ful owners,  and  could  not  maintain  a  bill  to  foreclose  the 
mortgage.! 

86.  In  Kentucky,  the  assignment  of  a  note  secured  by 
mortgage  carries  with  it  the  mortgage  lien,  which  continues 
notwithstanding  a  renewal  of  the  note  or  the  giving  of  a 
new  one  to  a  third  person.^  (i) 

37.  But  where  a  mortgage  is  made  to  secure  several  notes, 
an  assignment  of  the  mortgage  and  some  of  the  notes  does 
not  pass  the  others.^ 

38.  In  Mississippi,  it  is  held,  that  the  mortgage  passes  by 
a  transfer  of  the  note.  The  assignee  may  foreclose  the  mort- 
gage, and  the  mortgagee  cannot  release  it.  It  has  been  ques- 
tioned, whether,  in  case  of  several  notes  secured  by  mortgage, 
the  mortgagee  can  legally  stipulate  with  an  assignee  of  the 
first,  that  he  shall  have  a  prior  lien  to  the  others.^  If  bonds 
secured  by  mortgage  are  assigned  as  collateral  security  for 
the  assignee's  acceptances,  which  he  pays,  he  may  foreclose 
the  mortgage.^  Where  a  mortgagee  assigns  a  part  of  the 
notes,  he  may  agree  that  the  assigned  notes  shall  be  first  paid 
from  the  mortgage  fund,  which  agreement  shall  bind  subse- 
quent assignees  of  the  other  notes.  And  the  agreement  may 
be  implied  from  the  circumstances  of  the  case,  as  well  as 
express.^    If  the  mortgagee  is  compelled  to  pay  one  of  the  first 

1  McConnell  y.IIodson,  2  Gilm.  (111.)  Lewis  v.  Starke,  10,  120;  Henderson  v. 

640.  Hcrrod,  lb.   631;  Terry  v.  Woods,  6, 

••^Burdett  v.  Clay,  8  B.  Monr.  287;  139. 

Waller  v.  Tate,  4  Ih.  532.  '^  Natchez  v.  Minor,  9  S.  &  M.  544. 

»  Stockton  y.Julinsoii,  G  B.  Monr.  408.  "  Bank,  &c.  v.  Tarleton,  23  Miss.  173. 

*  Dick  V.  Mawry,  9  Sra.  &  M.  448; 

(i)  The  assignee  must  resort  to  the  land  before  calling  on  the  assignor. 
Miles  V.  Gray,  4  B.  Monr.  417. 


en.  XI.]  ESTATE   OF   THE   MORTGAGEE.  233 

assigned  notes  as  indorser,  he  cannot,  as  between  him  and 
the  first  assignee,  claim  a  pro  rata  distribution  of  the  pro- 
ceeds of  the  property.  As  to  such  assignee,  he  does  not 
stand  as  a  surety ;  but  the  debt  is  Ms  own,  and  the  payment 
a  fulfilment  of  his  contract.^ 

39.  Where  a  mortgage  was  made  to  secure  several  notes, 
which  were  transferred  to  different  persons,  and  the  mort- 
gagee gave  to  the  first  assignee  an  unrecorded  writing, 
authorizing  him  to  use  the  mortgage  in  any  manner  that  he 
himself  might  do,  for  the  collection  of  the  note ;  held,  such 
assignee  acquired  no  better  title  to  the  mortgage  than  the 
others,  and,  if  he  proceeded  to  foreclose,  after  the  other  notes 
had  matured,  must  share  with  them  the  proceeds  of  suit.^ 

40.  In  Alabama,  the  assignment  of  the  mortgage  note  or 
bond  passes  the  mortgage  in  equity,  and  the  assignee  may 
enforce  it  in  the  name  of  the  mortgagee ;  though  in  case  of 
express  assignment  he  must  do  it  in  his  own  name.^  In  the 
former  case,  he  may  proceed  to  foreclose  in  his  own  name  in 
a  court  of  equity.     The  mortgagee  holds  in  trust  for  him.^ 

40  a.  It  has  been  held,  that  where  a  vendor  of  land  takes 
several  notes  for  the  price,  retaining  also  a  lien  upon  the 
land,  and  assigns  some  of  the  notes,  with  the  lien,  retaining 
the  rest ;  upon  a  sale  of  the  property,  the  proceeds  shall  be 
appUed  to  all  the  notes  pro  rata,  unless  the  assignment  ex- 
presses a  contrary  intent.^  But  another  case  decides,  that 
where  one  of  several  mortgage  notes  is  assigned,  and  the 
mortgage  is  not  sufficient  security  for  the  whole,  the  assignee 
shall  have  priority.  If  the  notes  are  assigned  to  different 
persons,  they  will  have  priority  in  the  order  of  their  assign- 
ment.^ 

40  b.  In  Florida,  the  assignment  of  a  mortgage  must  be 
accompanied  with  an  assignment  of  the  debt,  in  order  to 
make  the  assignee  a  creditor  of  the  mortgagor." 

1  Bank,  &c.  v.  Tarlcton,  23  Miss.  173.  *  Center  v.  P.  &  M.  Bank,  22,  743. 

2  Henderson  v.  Herrod,  10  Sm.  &  M.  ^  M'Vay  v.  Bloodgood,  9  For.  547. 
631.  8  Cullum  V.  Envin,  4  Ala.  452. 

3  Graham  v.  Newman,  21  Ala.  497 ;  '  Carter  v.  Bennett,  4  Florida,  283. 
Emanuel  v.  Hunt,  2,  190. 

20* 


234  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

40  c.  Where  five  notes  were  made,  secured  by  one  mort- 
gage, and  three  of  them  were  assigned  to  A.,  by  whom  a 
foreclosm-e  was  had,  and  the  land  was  sold,  and  one  of  the 
notes  assigned  to  B.,  by  whom,  after  the  foreclosure,  suit  was 
brought  against  the  mortgagor's  administrator ;  held,  where 
several  notes  are  secured  by  one  mortgage,  all  the  mort- 
gagees and  their  assignees  should  be  before  the  Court  before 
foreclosure  would  be  decreed ;  and  B.'s  suit  was  dismissed 
without  prejudice.^ 

41.  Upon  the  general  principle,  that  the  mortgagee  is  not 
the  real  owner  of  the  estate,  he  has  no  power  to  lease  the 
premises,  except  in  case  of  absolute  necessity .^ 

42.  In  Hungerford  v.  Clay,^  which  was  a  bill  for  reconvey- 
ance filed  by  mortgagor  against  mortgagee,  the  defendant 
answered,  that  he  had  leased  for  five  years,  at  an  annual 
rent,  with  a  covenant  that  after  such  term  the  tenant  might 
hold  four  years  longer,  and  that  he  would  reconvey,  if  the 
mortgagor  would  grant  such  additional  lease.  A  decree  at 
the  Rolls  in  favor  of  the  defendant  was  reversed  by  Lord 
Macclesfield  on  appeal,  upon  the  ground  that  before  fore- 
closure a  mortgagee  cannot  lease  to  bind  the  mortgagor,  un- 
less from  necessity,  and  to  avoid  an  apparent  loss. 

42  a.  Nor  is  a  mortgagee  entitled  to  the  remedies  of  a  les- 
sor. Thus  a  mortgagee  received  seizin  and  possession  under 
a  conditional  judgment  and  execution,  the  mortgagor  agree- 
ing to  quit  whenever  the  mortgagee  should  lease  the  prem- 
ises, but  not  being  actually  ejected.  The  mortgagee  made 
a  written  lease  to  a  third  person.  Held,  the  latter  could 
not  maintain  the  process  provided  by  the  Revised  Statutes 
(p.  104)  against  the  mortgagor,  upon  his  refusing  to  quit.* 

43.  Although  not  owner  of  the  estate,  a  mortgagee  has  an 
insurable  interest.  The  mortgagor  and  mortgagee  may  in- 
sure each  his  own  interest.  An  insurance  by  the  latter  is 
merely  an  insurance  of  the  debt,  which  ceases  when  the  debt 


1  Wilson  V.  Hiiywanl,  2  Florida,  27.  «  9  Mod.  1. 

^  Coote,  420.  *  Lariicd  v.  Clarke,  8  Cush.  29. 


en.  XI.]  ESTATE   OF   THE   MORTGAGEE.  235 

is  paid.  If  a  loss  happens  before  such  payment,  he  may 
recover  to  the  amount  of  the  debt.  If  the  mortgagor  obtains 
insurance,  he  may  recover  the  full  amount  of  the  policy  ;  and 
he  may  insure  to  the  full  value  of  the  property,  notwithstand- 
ing the  incumbrance.! 

44.  In  Columbia,  &c.  v.  Lawrence,^  Judge  Story  says ;  — 
"  "We  know  of  no  principle  of  law  or  of  equity,  by  which  a 
mortgagee  has  a  right  to  claim  the  benefit  of  a  policy  under- 
written for  the  mortgagor  on  the  mortgaged  property,  in  case 
of  a  loss  by  fire.  It  is  not  attached  or  an  incident  to  his 
mortgage.  It  is  strictly  a  personal  contract  for  the  benefit 
of  the  mortgagor,  to  which  the  mortgagee  has  no  more  title 
than  any  other  creditor: "  and  the  clause,  "  for  whom  it  may 
concern,"  has  been  held  to  make  no  difference  in  this  re- 
spect.^ 

4f45.  In  the  case  of  Carter  v.  Rockett,*  Chancellor  Walworth 
lays  down  the  following  distinctions  upon  this  subject :  — 
"A  contract  of  insurance  against  fire,  as  a  general  rule,  is  a 
mere  personal  contract  between  the  assured  and  the  under- 
writer, to  indemnify  the  former  against  the  loss  he  may  sus- 
tain. But  the  assured,  by  an  agreement  to  insure  for  the 
protection  and  indemnity  of  another  person,  having  an  inter- 
est in  the  subject  of  the  insurance,  may  unquestionably  give 
such  third  person  an  equitable  lien  upon  the  money  due 
upon  the  policy,  to  the  extent  of  such  interest."  In  the  same 
State  (New  York)  it  is  held,  that  where  the  insured  has 
mortgaged  the  property,  and  assigned  the  policy  to  the 
mortgagee  before  the  loss ;  an  action  must  still  be  brought 
in  the  name  of  the  mortgagor.^ 

46.  Insurance  upon  mortgaged  real  estate,  payable  to  the 
mortgagee.  By  the  by-laws  of  the  company,  no  mortgaged 
estate  should  be  deemed  alienated,  so  as  to  avoid  the  policy, 
until  foreclosure ;  and  any  policy,  payable  to  a  mortgagee, 

1  Carpenter   v.   Providenee,   &c.,    IG         ^  McDonald  v.  Black,  20  Ohio,  185 ; 

Pet.  495  ;  Kittrcdge  v.  Kockingham,  &c.  Vande<,'raaff  v.  Medlock,  3  Port.  389. 
(N.  II.)  Law  Kcp.  Dec.  1849,  p.  412.  *  8  Paij^e,  438. 

-  10  Pet.  512;  acc.  Lynch  v.  Dalzeli,         ^  Conovert;.  The  Mutual,  &c.,  3  Ucnio, 

4  Bro.  Parl.431.  254. 


236  THE  LAW   OF  MORTGAGES.  [CH.  XI. 

should  continue  so  payable,  notwithstanding  a  subsequent 
alienation  of  the  estate.  A  thu'd  person  purchased  the  equity 
of  redemption,  and  took  an  assignment  of  the  mortgage  and 
the  policy,  after  which  a  loss  accrued.  Held,  the  mortgage 
was  merged  in  the  fee,  and  no  action  would  lie  on  the 
policy.^  Shaw,  C.  J.,  says :  ^  — "  The  insurance  was  not 
upon  the  interest  of  Macomber  ;  but  the  undertaking  to  pay 
him  was  a  collateral  and  derivative  contract,  growing  out  of 
the  principal  contract  with  the  assured,  by  which  the  com- 
pany stipulated  to  pay  to  the  appointee  of  the  assured, — 
instead  of  paying  to  the  assured  himself.  The  ordinary 
effect  of  such  a  contract  between  the  three  parties  is,  that  if 
the  assured,  whose  property  and  interest  alone  are  covered, 
should  aliene  before  a  fire,  he  would  sustain  no  damage, 
there  would  be  no  loss,  for  which  the  insurers  would  be  re- 
sponsible, and  therefore  the  contingency,  upon  which  the 
appointee  would  have  a  right  to  claim,  could  not  happen. 
In  general,  the  assured  must  have  an  insurable  interest,  at 
the  time  of  the  damage  by  fire  as  well  as  at  the  time  of 
effecting  the  policy.  But  the  policy  and  by-laws  contain  an 
express  stipulation,  that  no  mortgaged  estate  shall  be  deemed 
to  be  alienated,  until  the  mortgage  shall  be  foreclosed."  So 
also,  that  a  mortgagee  may  recover,  notwithstanding  an 
alienation.  Hence  the  alienation,  in  this  case,  would  be  no 
bar  to  the  action.  "  Although  the  insurance  is  not  upon  the 
interest  of  the  mortgagee,  and  the  undertaking,  —  to  pay  the 
mortgagee,  —  collateral  and  derivative,  yet  the  stipulation  is 
so  made,  because  he  is  mortgagee,  and  for  the  better  security 
of  the  mortgage  debt.  If  therefore  the  mortgage  is  paid, 
foreclosed,  or  otherwise  discharged  and  extinguished,  such 
separate  and  collateral  promise  to  pay  the  mortgagee  would 
be  determined." 

47.  In  Thomas  v.  Von  Kapff,^  the  mortgagor  covenanted 
with  the  mortgagee,  that  he  would  keep  the  premises  insured 

1  Macomber  v.  Mutual,  &c.,  8  Cush.        '-^  G  Gill  &  J.  372.     See  Vernon  v. 
133.  Smith,  5  B.  &  A.  1. 

^Ib.  135. 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  237 

during  the  continuance  of  the  lien  of  the  mortgage,  and  in 
case  of  loss  that  the  amount  received  upon  the  policy  should 
be  applied  to  the  rebuilding  of  the  property  insured.  It  was 
held,  that  the  mortgagee  had  an  equitable  lien  upon  the  fund 
received  by  the  mortgagor  under  the  policy,  to  satisfy  the 
balance  due  upon  the  mortgage,  which  could  not  be  collected 
upon  a  foreclosure  and  sale  of  the  mortgaged  premises. 

48.  In  case  of  insurance  by  a  mutual  insurance  company, 
it  is  not  sufficient  to  enable  a  mortgagee  to  recover  upon 
the  policy,  that  in  the  application  the  property  is  described 
as  incumbered,  and  the  loss  made  payable  to  him,  more 
especially  if  the  sum  insured  exceeds  the  amount  of  the 
mortgage.  In  such  case,  the  insurance  is  upon  the  property 
q|"  the  mortgagor.  He  gives  the  deposit  note  and  becomes  a 
member  of  the  company,  and  the  contract  is  made  with  him  ; 
while  the  mortgagee  is  not  insured,  and  does  not  become  a 
member.^  So  in  assumpsit  on  a  policy  of  insurance,  it  ap- 
peared that  the  plaintiff,  as  mortgagee,  insured  his  interest  in 
his  own  name,  and  paid  the  premium.  The  defendants  (the 
corporation)  admitted  the  loss,  and  were  ready  to  pay  it, 
upon  the  plaintiff's  assigning  to  them  his  interest  in  the 
property.  Held,  as  there  was  no  privity  between  the  defend- 
ants and  the  mortgagor,  and  the  plaintiflf  had  insured  for 
himself  and  in  his  own  name,  he  had  a  claim  to  the  full 
amount  of  the  poKcy,  without  assigning  or  relinquishing  his 
debt.2(;) 

1  Kittredge  v.  Rockingham,  &c.  (N.  -  King  v.  State  Mutual,  &c.,  (Mass.) 
H.)  Law  Rep.  Dec.  1849,  p.  412.  Law  Rep.  June,  1851,  p.  88  :  7  Cush.  1, 

8,  9,  10.     See  2  Phill.  Ins.  419. 


(y)  In  this  case,  the  Court  laid  down  the  further  doctrine,  that  the  mort- 
gagee might  subsequently  claim  the  full  amount  of  his  debt  from  the  mort- 
gagor ;  the  contracts  between  the  mortgagee  and  mortgagor,  and  between 
the  mortgagee  and  the  insurers,  being  alike  valid,  and  wholly  distinct  from, 
and  independent  of  each  other ;  the  debtor  paying  no  more  than  he  origin- 
ally received,  and  the  insurers  only  the  amount  of  a  voluntary  risk,  for  which 
they  received  the  premium  established  by  themselves ;  and  the  policy  not 


238  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

48  a.  A  lessee,  who  had  covenanted  to  insure  against  fire 
in  the  joint  names  of  himself  and  his  lessor,  with  a  proviso 
that  the  policy  moneys  should  be  expended  in  reinstating  the 
premises,  assigned  them  by  way  of  mortgage,  with  a  power 
of  sale,  under  which  the  mortgagee  sold.  The  mortgage  did 
not  refer  to  the  policy.  The  premises  were  partially  burned, 
and  reinstated  by  the  mortgagee.  On  a  claim  filed  by  the 
mortgagee  and  his  vendee,  the  mortgagor  was  decreed  to 


being  liable  to  tbe  objections  against  wager  policies.  Tlie  Court  enter  into 
an  elaborate  examination  of  prior  decisions,  upon  tbis  subject,  and  dissent 
from  tbe  doctrine  laid  down  in  Cai'penter  v.  Providence,  &c.,  16  Pet.  495, 
(^Supra,  §  43,)  tbat  if  tbe  mortgagee  recover  tbe  amount  of  bis  debt  from  tbe 
insurers,  they  may  claim  an  assignment  of  tbe  debt  and  enforce  it  against 
tbe  mortgagor. 

It  bas  been  recently  beld  in  Maine,  tbat  insurance  money,  received 
by  tbe  mortgagee,  must  be  accounted  for  like  rents  and  profits.  And  if 
several  notes,  payable  at  different  times,  were  secured  by  tbe  mortgage,  and 
have  become  overdue,  sucb  money  is  to  be  appropriated,  first  to  tbe  interest 
on  all  tbe  notes,  and  then  to  tbe  principal  of  tbe  notes,  in  tbe  order  in  wbich 
tbey  fall  due.  Larrabee  v.  Lumbert,  32  Maine,  97.  In  tbe  same  State,  by 
a  late  statute,  wbere  a  mortgagor  effects  insurance  upon  tbe  property,  with 
bis  written  consent,  tbe  loss  may  be  paid  to  tbe  mortgagee;  if  be  does  not 
thus  consent,  a  trustee  process  lies,  and  a  payment  will  be  available  pro 
tanto.  Different  mortgages  have  claims  according  to  priority.  Any  insur- 
ance by  tbe  mortgagee  will  be  void,  if  be  claims  under  this  act,  unless  the 
insurer  of  tbe  mortgagor  consent.    St.  1844,  97,  98. 

Tbe  owner  of  an  estate  insured  by  a  mutual  fire  insurance  company  mort- 
gaged the  estate,  and,  at  the  same  time,  with  tbe  assent  of  the  insurers, 
transferred  tbe  policy  to  the  mortgagee  by  an  assignment,  which  was  abso- 
lute in  terms,  and  expressed  to  be  for  a  valuable  consideration,  but  intended 
only  as  a  security  for  the  mortgage  debt.  The  mortgagee  afterwards  as- 
signed tbe  mortgage  and  the  debt,  with  the  policy,  by  an  absolute  assign- 
ment, assented  to  by  the  insurers,  and  for  a  valuable  consideration.  The 
debt  having  been  subsequently  paid  to  the  assignee,  by  an  assignee  of  the 
mortgagor,  and  the  mortgage  thereupon  discharged  ;  and  the  assignee  of 
the  mortgagee,  after  the  expiration  of  tbe  policy,  having  received  the  re- 
turn pi'emium  thereon ;  held,  although  he  might  receive  it  as  attorney  of  tbe 
mortgagor,  be  could  not  retain  it  against  the  mortgagor,  to  whom  be  was 
llubh;  tlierefor  in  an  action  of  assumpsit.     Felton  v.  Brooks,  4  Cusb.  203. 


• 


en.  XI.]  ESTATE   OF  THE   MORTGAGEE.  239 

deliver  up  the  policy,  and  join  with  the  lessor  in  signing  the 
receipt  to  the  insurance  office,  to  enable  the  mortgagee  to 
receive  the  amount  of  the  loss.^ 

48  b.  A  lessee  in  possession  has  no  lien  as  against  his 
mortgagee,  on  the  policy  moneys,  for  repairs  made  by  him.^ 

48  c.  A  mortgagor  assigned  his  policy  of  insurance  to  the 
mortgagee ;  and  a  suit  was  afterwards  brought  upon  it  in 
the  name  of  the  former,  but  for  the  use  of  the  latter,  and 
judgment  recovered.  The  judgment  remaining  unsatisfied, 
the  mortgagor  paid  the  mortgage  debt  by  coercion,  to  avoid 
foreclosure.  Held,  he  might  still  recover  the  amount  of  the 
judgment.'^ 

48  d.  The  following  remarks,  in  a  recent  case,  present  a 
full  and  clear  statement  of  the  respective  rights  of  mortgagor 
and  mortgagee,  in  reference  to  insurance,  under  the  various 
combinations  of  facts  which  are  liable  to  occur.  K  a  mort- 
gagee effects  insurance  of  his  interest,  and  before  a  loss  his 
debt  is  paid,  he  cannot  recover  of  the  insurers,  because  at  the 
time  of  the  loss  he  has  ceased  to  have  any  interest  in  the 
property.  If  the  mortgagor  effects  insm-ance,  payable  to  the 
mortgagee,  it  is  an  insurance  of  the  mortgagor's  interest, 
with  an  irrevocable  power  of  attorney  or  assignment  to  the 
mortgagee,  as  fm^her  security,  to  receive  the  insurance.  In 
such  case,  the  whole  amount  must  be  paid,  though  the 
mortgage  debt  has  been  extinguished.  The  loss  is  then 
received  by  the  mortgagee  from  a  fund  placed  in  his  hands 
for  a  special  purpose,  which  has  been  accomplished  ;  it  is  the 
proceeds  of  an  insurance  of  the  mortgagor's  interest,  by  a  con- 
tract with  him,  on  a  consideration  made  by  him,  and  assigned 
to  the  mortgagee.  Of  course  the  mortgagee  receives  it  to  the 
use  of,  and  accounts  for  it  with  the  mortgagor.  If  the  debt 
has  not  been  paid,  the  money  goes  to  pay  it  pro  tanlo,  and  is 
therefore  so  applied  to  the  mortgagor's  benefit.  Still  another 
state  of  facts  may  occur ;  where  it  is  agreed  between  the 

1  Garden  v.  Ingam,  23  Eng.  Law  &        ^  j^id. 
Eq.  408.  8  Kobertv. Traders,  &c.,  17  "Wend.  631. 


• 


240  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

parties,  that  the  mortgagee  may  insure  at  the  mortgagor's 
expense,  and  the  premium  be  added  to  the  debt.  This  is 
not  usurious  ;  because  the  mortgagor  is  the  ultimate  gainer 
by  it.  In  case  of  loss  before  payment  of  the  debt,  the  sum 
payable  to  the  mortgagee  is  the  proceeds  of  a  security  fur- 
nished by  the  mortgagor,  and  goes  to  reduce  the  debt,  as  in 
case  of  all  collateral  security.  In  all  these  cases,  the  mort- 
gagor pays  the  premium.^ 

49.  Where  a  life  policy  is  assigned  to  the  mortgagee,  in 
trust  to  receive  the  proceeds ;  he  cannot  have  a  decree  to 
sell  it,  but  may  have  one  for  foreclosure,  and  still  retain  the 
policy.^ 

50.  Although,  as  above  stated,  a  mortgage  in  most  re- 
spects is  treated  as  a  mere  security  accompanying  the  debt ; 
yet  the  assignment  of  a  mortgage  is  held  to  be  the  convey- 
ance of  an  estate,  and  not  the  mere  transfer  of  a  security. 
Hence  the  assignee  must  bring  an  action,  if  at  all,  in  his 
own  name.3 

51.  In  the  case  of  Gould  v.  Newman,*  it  was  held,  that 
where  a  mortgage  has  been  assigned,  a  suit  to  foreclose  can- 
not be  maintained  in  the  name  of  the  mortgagee,  though  he 
have  a  power  of  attorney  from  the  assignee.  In  delivering 
the  opinion  of  the  Court,  Parsons,  C.  J.,  distinguishes  this 
case  from  that  in  which  a  disseizee  makes  a  deed  of  the  land, 
and  afterwards  brings  a  suit  to  recover  it.  In  such  case,  the 
conveyance  from  the  plaintiff  is  no  bar  to  the  action,  because 
the  disseizin  prevented  its  having  any  legal  operation.  But 
the  possession  of  a  mortgagor  is  no  disseizin  of  the  mort- 
gagee, and  his  alienation  is  not  the  assignment  of  a  chose  in 
action,  but  a  transfer  of  the  legal  estate,  subject  to  a  condition. 
He  further  remarks,  that  a  contrary  rule  would  involve  great 
inconvenience,  because  the  assignee,  after  recovering  a  judg- 
ment in  the  name  of  the  mortgagee  or  his  representative,  if 
deceased,  might  still  fmd  it  difficult  to  perfect  the  legal  title 

1  Kin-,'  ;,'.  State,  &c.,  7  Ciisli.  5,  G,  7,  =*  See  Given  v.  Doc,  7  Blackf.  210; 
per  Shaw,  C.  J.  Aiken  v.  Skilburn,  21  Maine,  252. 

^  Dyson  V.  Morris,  1  Hare,  413.  *  G  Mass.  239. 


CH.  XI.]  ESTATE   OF  THE  MORTGAGEE.  241 

in  himself.  Nor  is  it  any  objection  to  such  suit,  that  judg- 
ment has  been  recovered  upon  the  bond  secured  by  the  mort- 
gage, and  assigned  with  it,  in  the  name  of  the  assignor,  but 
not  satisfied. (A:) 

52.  The  doctrines  above  stated,  as  to  the  nature  of  the 
mortgagee's  title,  have  been  settled  more  perhaps  upon  the 
authority  of  Lord  Mansfield's  decision  in  the  case  of  Martin 
v.  MowHn,  than  any  o.ther  single  case.  This  decision  has 
consequently  been  often  commented  upon,  and  sometimes 
not  with  entire  approbation. 

53.  In  the  case  of  Parsons  v.  Welles,^  the  following  very 
lucid  and  forcible  remarks  were  made  by  Mr.  Justice  Wilde  : 
— "  It  cannot  be  denied,  that  these  principles  and  rules  of 
the  courts  of  equity  have  had  a  favorable  operation  in  the 
administration  of  justice,  and  have  afforded  relief  where,  by 
the  strict  principles  of  the  common  law,  the  mortgagor  was 
without  remedy.  They  are  conformable  to  the  spirit  of  the 
mortgage  contract,  and  it  is  not  surprising  that  they  should 
have  gained  some  footing  in  the  courts  of  common  law.  It 
may  be  doubted,  however,  whether  in  some  particulars  they 

1  17  Mass.  423,  425. 


(^■)  It  has  been  held  in  Massachusetts,  that  disseizin  of  the  mortgagor, 
subsequent  to  the  mortgage,  is  also  a  disseizin  of  the  mortgagee  ;  and,  while 
it  continues,  the  latter  cannot  make  a  valid  transfer  of  the  mortgage.  Poio-- 
nard  v.  Smith,  8  Pick.  272.  But  in  Vermont,  in  Converse  v.  Searls,  10  Verm. 
578,  (see  Converse  v.  Cook,  8  Verm.  164,)  it  was  held,  that  a  mortgage  may 
be  validly  assigned,  though  a  third  person  is  at  the  time  in  possession,  claim- 
ing adversely  to  the  mortgagor.  The  Court  say,  the  possession  of  neither 
party  could  prevent  the  other  from  transferring  his  interest.  While  the 
right  of  redemption  continues,  the  mo"ftgagee's  interest  is  but  collateral 
security,  and  an  incident  to  the  debt,  which  is  the  main  subject  of  assign- 
ment. It  is  manifestly  foreign  to  the  purpose  of  the  statute  (to  prevent 
fraudulent  speculations,  &c.)  to  restrain  the  transfer  of  such  a  debt;  and 
though  the  legal  title  may  not  pass  without  a  formal  conveyance,  it  is  but 
the  execution  of  a  trust,  Avhich  a  court  of  equity  will  imply  in  flivor  of  the 
assignee  of  the  debt. 

VOL.   I.  21 


242  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

have  not  been  adopted  to  an  extent,  inconsistent  with  the 
established  rules  of  the  common  law."  The  learned  Judge 
then  quotes  the  above-cited  remarks  of  Lord  Mansfield,  in 
the  case  of  Martin  v.  Mowlin,  and  proceeds  as  follows :  — 
"  No  authorities  are  cited  in  support  of  these  remarks,  and  it 
seems  to  me  extremely  difficult  to  reconcile  some  of  them 
with  well-established  principles  of  law,  or  with  the  true 
intention  of  the  statute  of  frauds.  Judge  Trowbridge  was  of 
opinion,  that  they  were  accompanied  with  some  restrictions, 
which  the  reporter  omitted  to  notice;  because  he  acknow- 
ledges in  his  preface  that  he  did  not  always  take  down  the 
restrictions  with  which  the  speaker  might  qualify  a  proposi- 
tion, to  guard  against  its  being  understood  universally,  or  in 
too  large  a  sense.  See  8  Mass.  Rep.  558.  This  appears  to 
me  probable,  for  it  is  impossible,  as  it  seems  to  me,  to  sup- 
pose that  Lord  Mansfield  meant  to  assert  that  '  the  estate  in 
the  land  is  the  same  thing  as  the  money  due  upon  it,'  with- 
out some  qualification  of  the  expression.  This  would  con- 
found all  our  notions,  and  break  down  every  distinction 
between  real  and  personal  estate ;  between  a  title  in  land 
and  choses  in  action  ;  between  mortgages  in  fee  and  mort- 
gages for  a  term ;  and  between  mortgages  of  land  and  mort- 
gages of  goods.  Probably  Lord  Mansfield  intended  to  say 
nothing  more,  than  that  the  estate  of  the  mortgagee  is  worth 
no  more  than  the  debt,  and  is  dependent  upon  it ;  that-  the 
discharge  of  the  debt,  at  the  time  stipulated  for  payment, 
would  defeat  the  mortgagee's  estate ;  and  even  payment 
afterwards  would  have  the  same  effect,  by  the  aid  of  the 
court  of  chancery,  or  without  such  aid,  by  virtue  of  the 
statute  of  7  Geo.  2,  ch.  20,  which  provides  that  the  mort- 
gagee shall  maintain  no  ejectment,  after  payment  or  tender 
by  the  mortgagor,  of  principal,  interest,  and  costs.  All  this 
would  be  true,  and  in  some  measure  justify  the  expression 
imputed  to  Lord  Mansfield;  which,  without  some  such  re- 
striction or  qualification,  cannot,  1  think,  be  held  for  law. 
"  Nor  can  it  be  true,  as  Judge  Trowbridge  has  shown,  by 


en.  XI.]  ESTATE   OF   THE   MORTGAGEE.  243 

very  cogent  arguments,  that '  the  assignment  of  the  debt  will 
draw  the  land  after  it,  as  a  consequence,'  to  every  purpose. 
It  can  only  be  so  by  the  aid  of  a  court  of  equity.  In  a  court 
of  equity,  the  debt  is  the  principal,  and  the  mortgage  is  the 
accessory.  And  it  is  there  held,  that  as  the  mortgagee  holds 
the  estate  in  trust  for  the  mortgagor,  so  when  the  debt  is 
assigned,  he  becomes  a  trustee  for  the  benefit  of  the  person 
having  an  interest  in  the  debt.  Omne  principale  trahit  ad  se 
accessorium.  This  too  was  one  of  the  grounds  suggested  by 
Judge  Spencer  for  the  opinion  in  the  case  of  Green  v.  Hart, 
1  Johns.  580,  in  which  it  was  held  that  the  transfer  of  a  note, 
secured  by  mortgage,  being  in  \\Titing,  the  mere  delivery  of 
the  mortgage  security  was  a  sufficient  assignment.  It  is 
true  that  Judge  Spencer  remarks,  that '  mortgages  are  not 
now  considered  as  conveyances  of  lands,  within  the  statute 
of  frauds.'  I  know  that  this  opinion  has  prevailed  in  courts 
of  equity  ;  but  I  have  not  been  able  to  find  any  decided  case 
to  support  it  at  law  ;  and  it  appears  to  me  against  the  letter 
and  intent  of  the  statute." 

54.  Mellen,  C.  J.,  says  -.1  —  "  The  case  of  Martin  v.  Mowlin 
has  so  long  been  the  subject  of  critical  animadversion  by 
Judge  Trowbridge  and  many  learned  Judges  since  his  time, 
that  it  cannot  be  deemed  an  authority."  And  in  Evans  v. 
Merriken,2  Stephen,  J.,  contrasts  this  language  of  Lord  Mans- 
field (as  to  the  identity  of  the  debt  and  mortgage)  with  his 
doctrine  in  the  subsequent  case  of  Keech  v.  Hall,^  decided  at 
a  later  period  of  his  judicial  life,  as  to  the  right  of  possession 
of  the  mortgagor  or  his  tenant.(/) 

1  Vose  V.  Handy,  2  Greenl.  333.  -  8  Gill  &  J.  46,  47.  3  Dougl.  22. 


(/)  In  Shannon  v.  Bradstreet,  1  Sch.  &  L.  66,  Chancellor  Redesdale 
remarked  :  —  "  Lord  Mansfield  had  on  his  mind  prejudices  derived  from  his 
familiarity  with  the  Scotch  law,  where  law  and  equity  are  administered  in 
the  same  courts,  and  where  the  distinction  between  them  which  subsists  with 
us  is  not  known;  and  there  are  many  things  in  his  decisions  which  show 
that  his  mind  had  received  a  tinge  on  that  subject  not  quite  consistent  with 


244  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

55.  On  the  other  hand  it  has  been  said  :  — "  These  dicta 
of  Lord  Mansfield "  (that  the  mortgage  accompanies  the 
note)  "  are  criticized  by  Judge  Trowbridge,  and  conjectm-ed 
by  him  to  have  been  put  down  by  the  reporter  by  mistake, 
or  without  the  accompanying  qualifications  or  limitations. 
But  the  opinion  is  very  lengthy,  and,  if  not  furnished  by  him 
in  writing,  must  have  undergone  his  examination,  and  have 
had  his  deliberate  approbation  as  reported.  No  Judge  was 
ever  more  celebrated  and  admired  for  his  luminous  and  im- 
proved views  of  the  common  law,  and  the  adaptation  of  it  to 
the  advancing  state  of  society,  than  he  was.  Judge  Trow- 
bridge had  doubtless  drawn  his  conclusions  from  the  more 
ancient  sources  of  the  common  law ;  and  no  doubt  found  it 
difficult,  in  common  with  the  rest  of  us,  to  forego  his  venera- 
tion of  Lord  Coke.  The  doctrine  of  Lord  Mansfield,  how- 
ever, in  regard  to  mortgages,  would  seem  not  to  have  been 
entirely  repudiated  by  the  jurists  of  modern  times."  ^ 

56.  The  intimate  connection,  above  referred  to,  between  a 
mortgage  and  the  debt  secured  by  it,  has  an  important  bear- 
ing upon  the  rights  of  joint  mortgagees,  more  especially 
where  one  of  them  has  died.(m) 

57.  In  Rigden  v.  VaUier,^  Lord  Hardwicke  remarked :  — 

1  Per   Whitman,    C.   J.,   Wilkins  v.        2  9  Vez.  sen.  258;  See  Tyler  y.  Tay- 
French,  20  Maine,  IIG,  117.  lor,  8  Barb.  585. 


the  constitution  of  England  and  Ireland  in  the  administration  of  justice.  It 
is  a  most  important  part  of  that  constitution,  that  the  jurisdictions  of  the 
courts  of  law  and  equity  should  be  kept  perfectly  distinct;  nothing  contrib- 
utes more  to  the  administration  of  justice  ;  and  although  they  act  in  a  great 
degree  by  the  same  rules,  yet  they  act  in  a  difl'erent  manner,  and  their 
modes  of  allbrding  relief  are  dilTerent ;  and  anybody  who  sees  what  passes 
in  a  court  of  justice  in  Scotland,  will  not  lament  that  this  distinction  pre- 
vails. But  Lord  Mansfield  seems  to  have  considered  that  it  maniiested 
liberality  of  sentiment,  to  endeavor  to  give  the  courts  of  law  the  powers 
which  are  vested  in  coucts  of  equity." 

(m)  In  case  of  joint  mortijacjurs,  having  distinct  interests,  though  joining  in 
one  deed,  c(|uitable  rules  of  apportionment  and  adjustment  will  be  applied, 
similar  to  those  adopted  in  case  of  joint  mortgagees.     Thus,  if  two  persons 


en.  XI.]  ESTATE   OF   THE  MORTGAGEE.  245 

"  This  Court  has  determined,  that  if  two  men  jointly  and 
equally  advance  a  sum  of  money  on  a  mortgage,  and  take 
that  security  to  them  and  their  heirs,  without  any  words 
equally  to  he  divided  between  them,  there  shall  be  no  survivor- 
ship ;  and  so  if  they  were  to  foreclose  the  mortgage,  the  estate 
should  be  divided  between  them,  because  their  intent  is  pre- 
sumed to  be  so." 

58.  Judge  Story  says,  that  "  If  two  persons  advance  a  sum 
of  money  by  way  of  mortgage,  and  take  a  mortgage  to  them 
jointly,  and  one  of  them  dies,  the  survivor  shall  not  have  the 
whole  money  due  on  the  mortgage,  but  the  representative  of 
the  deceased  party  shall  have  his  proportion,  as  a  trust;  for 
the  nature  of  the  transaction,  as  a  loan  of  money,  repels  the 
presumption  of  an  intention  to  hold  the  mortgage  as  a  joint 
tenancy."  '  But  it  is  held,  that  a  surviving  mortgagee  may 
bring  a  suit  to  foreclose.^ 

59.  In  Massachusetts,  if  a  mortgage  is  given  to  secure  a 
joint  debt,  it  shall  be  so  construed  as  to  create  a  joint  estate, 
notwithstanding  the  provisions  of  the  statute  making  all  con- 
veyances to   several  persons  tenancies  in  common,  unless  a 

1  Story's  Eq.  §  1206.  2  Williams  v.  Hilton,  35  Maine,  547. 


join  in  mortgaging  their  estates,  to  secure  a  sum  advanced  to  them  in  differ- 
ent proportions,  and  one  of  them  afterwards  mortgages  to  the  same  mort- 
gagee property,  a  part  of  which  is  included  in  the  former  deed,  the  mort- 
gagee, in  a  suit  for  foreclosure,  cannot  charge  the  estate  of  the  other 
mortgagor  with  more  than  the  first  advance.  Higgins  v.  Frankis,  15  L.  J., 
ch.  329,  N.  S.  Three  tenants  in  common  gave  a  power  of  attorney  to  make 
improvements  and  raise  money  therefor  by  mortgage,  which  was  done.  The 
share  of  one  was  not  liable  to  be  mortgaged,  in  consequence  of  a  marriage 
settlement.  Held,  the  others  were  liable  only  for  their  respective  shares  of 
the  debt.  Gumming  v.  Williamson,  1  Sandf.  Ch.  17.  Where  two  unite  in 
mortgaging  their  lands,  owned  in  severalty,  each  is  presumptively  liable  for 
half  the  debt,  and  his  lands  are  primarily  chargeable  to  that  extent ;  and  a 
subsequent  unrecorded  agreement,  by  which  one  agrees  to  pay  off  the  whole 
debt,  does  not  affect  subsequent  bond  fide  purchasers  of  his  lands,  without 
notice  of  the  agreement.     Iloyt  v.  Doughty,  4  Sandf.  462. 

21* 


246  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

joint  tenancy  is  expressly  provided  for.  Such  mortgage  is 
constiaied  with  reference  to  the  nature  of  the  transaction,  and 
the  object  the  parties  had  in  view.^  But  after  foreclosure,  the 
mortgagees  become  tenants  in  common.  The  land  is  no 
longer  a  mere  incident  to  the  debt,  liable  to  be  released  by  a 
release  of  the  debt  made  by  one  mortgagee.  The  foreclosure 
operates  as  a  new  purchase,  as  much  as  if  the  mortgagees 
had  received  payment  of  the  debt,  and  laid  out  the  money  in 
buying  the  land. 

60.  So  where  a  mortgage  is  made  to  secure  several  debts 
to  several  persons,  if  the  debts  are  equal,  the  mortgagees  will 
have  an  equal  interest  in  the  mortgaged  estate,  and  in  case 
of  foreclosure,  will  hold  it  in  equal  proportions.  But  if  the 
debts  are  unequal,  the  purparties  of  the  tenants  will  be  in 
exact  proportion  to  the  amounts  of  their  respective  debts.^ 

61.  A  mortgage,  given  to  two  persons,  to  secure  their 
several  debts,  is  several  and  not  joint.  Each  mortgagee  has 
a  right  to  enforce  his  claim  under  the  mortgage,  in  a  form 
adapted  to  the  case.  Upon  the  death  of  one,  the  doctrine  of 
survivorship  does  not  apply,  and  the  surviving  mortgagee 
cannot  maintain  an  action  on  the  mortgage  to  enforce  the 
payment  of  the  debt  due  to  the  deceased.-^ 

62.  It  seems,  if  a  mortgage  is  made  to  two,  to  secure  a 
debt  to  one  only,  they  take  the  legal  estate  as  tenants  in 
common  ;  but  the  party  not  interested  in  the  debt  holds  his 
moiety  as  trustee  for  the  other.* 

63.  In  consequence  of  the  peculiar  nature  of  the  mortga- 
gee's interest,  as  being  a  mere  lien  or  pledge,  such  interest  is 
not  liable  to  be  taken  and  sold  on  execution  by  his  creditors. 
This  point  seems  to  be  fully  established,  where  the  mort- 
gagee has  not  taken  possession  ;  and  the  only  doubt  in  regard 
to  it  is,  whether  enti't/  for  breach  of  condition  vests  in  the 
mortgagee  a  title,  which  can  be  reached  by  legal  process.'' 

1  Appluton  u.  Bovd,  7    Mass.    131  ;         -  Donncls  v.  Kdwards.  2  I'ick.  617. 
Burnett    v.  Pratt,   22    Pick.    .').')7  ;  Kev.         -^  Hurni'tt  v.  Pratt,  22  Pick.  .'i.'iG. 
Sis.    40G  ;  Goodwin    r.   Uicliardson,   11  •*  Root  c.  Bancroi't,  10  Met.  47. 

Mass.  469;  Kaiidall  v.  Piiilliiis.  3  .Mas.         •''  St-c  Pliiliips  v.  Hawkins,  1  Braiicli, 

.384.  (Fiori.)  2G2. 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  247 

64.  In  Connecticut,  in  a  case  where  the  law-day  had 
expired,  but  no  decree  of  foreclosure  passed,  Hosmer,  C.  J., 
says :  "  The  land  cannot  be  taken  for  the  debts  of  the  mort- 
gagee until  his  entry  upon  it,  and  in  my  opinion  until  fore- 
closure." 1 

65.  In  New  Hampshire  it  is  held,  that  before  entry  to  fore- 
close, the  mortgagee's  estate  is  not  subject  to  execution, 
though  judgment  has  been  rendered  upon  the  mortgage,  and 
a  wTit  of  possession  issued.^ 

66.  In  the  case  of  Blanchard  v.  Colburn,^  Parker,  C.  J., 
assigned  various  reasons  for  this  doctrine.  Land  mortgaged 
is  not  the  real  estate  of  the  mortgagee,  within  the  meaning 
of  the  statute,  which  provides  for  the  extending  of  executions 
upon  such  estate.  "  The  difficulties  of  levying  upon  land 
mortgaged,  to  satisfy  a  debt  due  from  the  mortgagee,  are 
insuperable.  The  debt  may  require  only  a  small  part  of  the 
land  to  satisfy  it,  and  several  executions  may  be  levied  by 
several  persons  ;  and  this  would  embarrass  the  mortgagor  or 
his  heirs,  if  they  should  choose  to  redeem.  Besides,  the  land 
mortgaged  is  only  a  pledge  for  the  debt,  which  may  be,  and 
often  is,  assignable  in  its  nature  ;  and  if  it  be  assigned,  the 
mortgagor  may  pay  it  to  the  assignee,  and  thus  discharge  his 
mortgage,  notwithstanding  the  creditors  of  the  mortgagee 
may  have  taken  the  land  in  execution.  These  difficulties 
have  caused  the  prevalent  opinion,  that  lands  so  situated  are 
not  subject  to  the  debts  of  the  mortgagee  ;  at  least  not  until 
he  shall  have  entered  with  a  view  to  foreclose."  In  this  case, 
the  Court  seem  to  be  of  opinion,  that  if  it  had  appeared  by 
direct  evidence,  or  facts  had  been  proved  from  which  a  pre- 
sumption might  be  raised,  that  the  mortgagee  had  entered 
before  the  levy,  such  levy  would  have  been  good ;  but  the 
point  was  not  expressly  decided. («) 

1  Huntington  v.  Smitli,  4  Cunn.  2.37.  °  16  ilass.  346;  Huntington  v.  Smith, 

See  McGiin  v.  Marshall,  7  Huinpli.  121.     4  Conn.  237. 
^  Glass  V.  Ellison,  9  N.  H.  69. 


(n)  An  cai-ly  commentary  upon  the  law  of  mortgages  in  Massachusetts, 


248  THE   LAW    OF   MORTGAGES.  [CH.  XI. 

67.  Upon  the  same  principle,  in  Eaton  v.  Whiting,^  the 
interest  of  a  mortgagee  was  held  not  liable  to  be  attached 
upon  mesne  process.     The  mortgage  is  said  to  be  a  chose  in 

1  3  Pick.  488. 


often  referred  to  and  quoted,  takes  a  somewhat  different  view  of  this  par- 
ticular topic  :  — 

"  If,  then,  a  mortgagee  has  an  estate  or  interest  in  the  land,  why  may  it 
not  be  attached,  and  taken  from  him  by  his  creditors,  as  well  as  the  mort- 
gagor's right  of  redemption.  A  term  in  England  may  be  extended  on  an 
elegit  as  part  of  the  debtor's  land,  or  may  be  delivered  to  his  creditor  at  the 
appraised  value,  as  part  of  the  debtor's  personal  estate.  And  a  creditor  may 
take  half  of  the  debtor's  land  in  execution  on  elegit,  and  consequently  may 
take  lands  mortgaged  in  fee.  A  different  doctrine  involves  us  in  the 
greatest  absurdities,  which  appear  most  glaring  when  we  apply  it  to  mort- 
gaged lands  in  possession  of  a  mortgagee  after  forfeiture.  The  province  law 
of  8  Wm.  3,  ch.  3,  provides,  that  all  lands  and  tenements  belonging  to  any 
person  in  his  own  proper  right  in  fee  may  be  taken  in  execution — where  he 
doth  not  tender  the  officer  personal  property.  Mortgages  of  land  in  fee  are 
either  real  or  personal  estate  of  the  mortgagee.  If  real,  then  they  are  lands 
and  tenements  belonging  to  the  mortgagee,  &c.  —  if  the  personal  estate  of 
the  mortgagee,  they  may  be  taken  as  his  personal  estate.  The  act  of  G  Geo. 
1,  empowers  a  creditor  to  take  his  debtor's  real  estate  in  execution.  This 
statute  extends  to  all  lands  and  tenements  in  which  the  debtor  has  any 
estate,  whether  conditional  or  absolute.  The  creditor  will  thereby  have  an 
estate,  which  will  last  as  long  as  the  debtor's  estate  would  have  continued. 
If  lands  or  tenements  mortgaged  are  taken  in  execution  for  the  debt  of  the 
mortgagee,  the  creditor  thereby  becomes  a  purchaser  of  that  part  so  taken  ; 
and  the  mortgagee  may  redeem  in  a  year,  or  the  mortgagor  may  redeem  the 
whole  by  payment  of  the  principal  sum  lent,  and  the  interest,  &c.,  or  lodging 
it  in  Court,  in  which  case  the  mortgagee  and  his  creditor  must  surrender  up 
the  land  to  the  mortgagor,  and  release  their  rights  in  it,  or  the  Court  will 
give  judgment  for  the  mortgagor  to  have  possession  of  the  land,  and  issue 
execution  accordingly,  and  deliver  to  the  creditor  the  money  due  to  him, 
and  the  mortgagee  the  over[)lus,  if  any  there  be.  Where  the  whole  of  the 
land  is  not  taken  in  execution,  the  mortgagor,  as  well  as  his  creditor,  is  to  be 
made  a  party  to  the  mortgagor's  suit  in  equity.  Each  will  receive  what  is 
respectively  due  to  him."     Iteading  of  Judge  Trowbridge,  8  Mass.  5C5-5G8. 

Bv  statute,  mortgages  held  l)y  lUinkx  are  liable  to  legal  process.  Mass. 
Rev.  Sts.,  ch.  30,  §§  52-54.  So,  by  Insurance  Companies.  Sts.  1854,  ch. 
453,  §  11. 


CH.  XI.]  ESTATE   OF  THE  MORTGAGEE.  249 

action,  at  least,  till  an  entry  to  foreclose,  and  to  be  in  the 
nature  of  a  pawn  or  pledge,  which  cannot  be  taken  upon  an 
execution  against  the  pledgee.  Nor  is  the  creditor  of  the 
mortgagee  without  remedy,  because  the  mortgagor  may  be 
summoned  as  trustee  of  the  mortgagee,  and  payment  upon 
this  process  would  discharge  the  mortgage  pro  tanto.  The 
Court  finally  consider  it  as  "  settled  law,  that  the  interest  of 
a  mortgagee  before  entry  is  not  attachable." 

68.  The  peculiar  nature  of  the  mortgagee's  interest,  as 
above  explained,  appears  from  the  disposition  which  the  law 
makes  of  it  after  his  death.  Upon  this  subject  it  is  well 
settled,  that  on  the  death  of  the  mortgagee,  his  estate  goes 
to  his  executors,  not  to  his  heirs ;  is  primarily  liable  for  debts  ; 
and  passes  by  a  devise,  though  not  executed  with  the  for- 
malities necessary  to  a  will  of  real  estate.(o)     "  The  mort- 


(o)  In  Maine,  Massachusetts,  Rhode  Island,  and  Michigan,  it  is  provided 
by  statutes,  that  the  executor,  &c.  of  a  mortgagee  may  recover  possession  of 
the  land  and  hold  it  as  asset^  and  be  seized  to  the  use  of  the  heirs,  widow, 
or  devisees,  (in  Maine,)  and  (in  Massachusetts,)  of  creditors  also,  or  of  the 
same  persons  who  might  claim  the  money,  if  paid  to  redeem  the  land.  In 
Massachusetts  and  Rhode  Island,  it  may  be  sold,  by  license  of  Court,  for 
payment  of  debts.  Judge  Story  says,  by  a  statute  of  Rhode  Island,  debts 
due  by  mortgage  are  personal  property,  and  distributed  as  such.  And 
where  the  mortgagee  has  deceased  without  taking  possession,  the  debt  is 
deemed  personal  assets,  and  the  mortgage  under  the  same  control  of  the  ex- 
ecutor, &c.  as  if  it  were  a  pledge  of  personal  estate ;  and  he  may  recover 
possession  by  ejectment,  and  may  discharge  the  mortgage  on  payment,  by 
release,  quitclaim,  or  any  legal  conveyance.  Dexter  v.  Arnold,  1  Sumn. 
114.  In  Maryland,  an  executor  may  discharge  a  mortgage.  Mass.  Rev. 
Sts.  430;  1  Smith,  166,  167  ;  R.  I.  L.  233,  234  ;  Mich.  L.  57  ;  Md.  L.  2528. 
See  Root  v.  Bancroft,  10  Met.  48 ;  McCall  t-.  Lenox,  9  S.  &  R.  304 ;  Fox  v. 
Lipe,  24  Wend.  164;  Pierce  v.  Brown,  24  Verm.  165.  In  Wisconsm, 
(Rev.  Sts.  368,)  the  mortgage  is  assets,  and  the  executor,  &c.  may  foreclose. 
In  case  of  redemption  or  sale  under  a  power,  the  executor  releases.  If  he 
purchases  the  estate,  he  is  seized  for  the  parties  in  interest.  He  may  sell 
the  mortgage  for  payment  of  debts  and  legacies.  If  not  sold,  it  is  distrib- 
uted as  personal  estate.  In  New  York  it  has  been  held,  that  after  condition 
broken,  the  legal  title  passes  to  the  heir,  though  perhaps  in  trust  for  the 


250  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

gagee  is  a  mere  chattel  interest,  of  which  the  administrator 
has  the  control.  He  is  responsible  for  the  debt  for  which  it 
a  pledge."  ^ 

69.  "  By  the  common  law,  if  the  conditions  of  defeasance  of 
a  mortgage  of  inheritance  be  so  penned,  that  no  mention  is 
made  either  of  heirs  or  executors  to  whom  the  money  should 
be  paid ;  in  that  case  the  money  ought  to  be  paid  to  the  ex- 
ecutrix, in  regard  that  the  money  came  first  out  of  the  per- 
sonal estate,  and  therefore  usually  returns  thither  again  ;  but 
if  the  defeasance  appoints  the  money  to  be  paid  either  to 
heirs  or  executors  disjunctively,  there,  by  the  common  law,  if 
the  mortgagor  pay  the  money  precisely  at  the  day,  he  may 
elect  to  pay  it  either  to  the  heirs  or  executors,  as  he  pleaseth. 
But  where  the  precise  day  is  past,  and  the  mortgage  forfeited, 
all  election  is  gone  in  law ;  for  in  law  there  is  no  redemp- 
tion. Then,  when  the  case  is  reduced  to  an  equity  of  re- 
demption, that  redemption  is  not  to  be  upon  payment  to  the 
heirs  or  executors  of  the  mortgagee,  at  the  election  of  the 
mortgagor ;  for  it  were  against  equity  to  revive  that  election  ; 
for  then  the  mortgagor  might  defer  the  payment  as  long  as 
he  pleaseth,  and  at  last  for  a  composition  by  payment  of  the 
money  to  that  hand  which  will  use  him  best ;  much  less  can 
the  Court  elect  or  direct  the  payment  where  they  please,  for  a 

1  Per  Parker,  C  J.,  Scott  v.  McFarlantl,  13  Mass.  311. 


e.xecutor.  The  former  must  bring  an  action.  Van  Duyne  v.  Thayre, 
14  Wend.  23G.  A  statute  was  passed  in  England  in  1850,  designed  to 
reconcile  the  conflicting  interests  of  the  personal  representative  and  the 
heir  of  a  deceased  mortgagee  ;  but  has  been  held  inapplicable,  in  a  late  case, 
unless  "  the  money  due  in  respect  of  the  mortgage  has  been  paid  to  a  per- 
son entitled  to  receive  the  same."  Ex  parte  Catherine  ]\Ieyrick,  4  Eng. 
Rci).  144.  See  Simpson  v.  Ammons,  1  Binn.  17  7.  In  Richardson  r. 
Iliidreth,  3  Cush.  227,  Bigelow,  J.,  distinguishes  between  the  case  of  a  de- 
cear^cd  mortgagee,  and  that  of  a  deceased  owner  of  real  estate,  which  is  re- 
(juirc<l  fur  j)aymcnt  of  debts.  There  the  seizin  is  vested  in  the  heirs,  and 
the  authority  to  sell  may  be  executed  without  actual  possession. 


CII.  XI.]  ESTATE    OF   THE   MORTGAGEE.  251 

power  so  arbitrary  might  be  attended  with  many  inconve- 
niences throughout.  Therefore,  to  have  a  certain  rule  in  these 
cases,  and  a  better  cannot  be  chose  than  to  come  as  near 
unto  the  rule  and  reason  of  the  common  law  as  may  be. 
Now  the  law  always  gives  the  money  to  the  executor  where 
no  person  is  named,  and  where  the  election  to  pay  to  either 
heir  or  executor  is  gone  and  forfeited  in  law,  it  is  all  one  in 
equity  as  if  either  heir  or  executor  were  named,  and  then 
equity  ought  to  follow  the  law  and  give  it  to  the  executor ; 
for  in  natural  justice  and  equity,  the  principal  right  of  the 
mortgagee  is  to  the  money,  and  his  right  of  the  land  is  only 
as  a  security  for  the  money ;  wherefore  when  the  security 
descends  to  the  heir  of  the  mortgagee,  attended  with  an 
equity  of  redemption,  as  soon  as  the  mortgagor  pays  the 
money,  the  lands  belong  to  him,  and  only  the  money  to  the 
mortgagee,  which  is  merely  personal,  and  so  accrues  to  the 
executors  or  administrators  of  the  mortgagee."  ^  And  in 
another  early  case  it  is  said,  a  condition  to  pay  executors 
and  administrators  shows  that  the  mortgage  is  regarded  as 
a  chattel  interest,  and  the  heir  cannot  claim  under  it.  If 
the  word  heirs  be  added,  the  same  construction  would  prob- 
ably be  adopted,  though  the  true  meaning  might  be  more 
doubtful.2 

69  a.  A  mortgagee  in  fee  died  intestate,  as  to  the  mort- 
gaged premises,  but  appointed  an  executor.  His  heir  at  law 
could  not  be  found,  or  was  unknown.  The  mortgage-money 
was  stiU  due,  and  was  not  intended  to  be  paid  off;  but  the 
executor,  wishing  to  make  a  transfer  of  the  mortgage,  peti- 
tioned, under  the  19th  section  of  the  13  &  14  Vict.  c.  60,  (the 
Trustee  Act,  1850,)  for  an  order  vesting  the  mortgaged  prem- 
ises in  him.  Held,  the  Court  had  jurisdiction  upon  such  a 
petition  to  make  the  order,  and  that  the  legislature  did  not 
mean  to  confine  its  authority  to  the  case  of  a  simple  "  recon- 
veyance." 2 

1  Per  Lord  Keeper  Finch,  Thorn-  -  Pawlett  v.  Att.  Gen.,  Hardrcs,  467. 
borough  V.  Baker,  Oases  in  Chancery,  ^  Boden's  Estate,  9  Eng.  Law  &  Eq. 
1,284,285.  223. 


252  THE   LAW   OF  MORTGAGES.  [CH.  XI. 

69  h.  In  Massachusetts,  it  was  formerly  held,  that,  upon 
the  death  of  a  mortgagee  the  estate  descends  to  his  heir,  who 
holds  in  trust  for  the  executor  ;  the  land  being  a  deposit  for 
the  money,  and  the  heir  a  surety  to  keep  the  pledge.^  In 
Smith  V.  Dyer,2  the  Court  held,  that  according  to  the 
general  principles  relating  to  mortgages,  as  well  as  by  ex- 
press statute,  the  heirs  of  a  mortgagee  cannot  bring  a  suit 
for  foreclosure.  The  effect  of  such  a  suit  might  be  that  the 
heirs,  who  give  no  bonds,  would  get  possession  of  assets  re- 
quired for  payment  of  debts,  and  the  fact  that  no  administra- 
tor had  ever  been  appointed,  though  twenty  years  had 
elapsed  from  the  mortgagee's  death,  would  make  no  differ- 
ence. The  Court  proceed  to  comment  upon  the  doctrine  of 
Judge  Trowbridge,  that  the  estate  of  a  mortgagee  descends 
to  his  heirs,  as  being  advanced  at  a  time  when  no  statute 
existed  on  the  subject,  and  chiefly  for  the  purpose  of  refuting 
Lord  Mansfield's  supposed  views  as  to  mortgaged  estates. 
They  further  remark,  that,  if  a  mortgagee  enter  before  condi- 
tion broken  and  die,  he  may  be  considered  as  having  died 
seized  of  a  defeasible  estate ;  but  still  the  executor,  &c. 
would  have  the  right  of  possession.  In  Dewey  v.  Van 
Deusen,^  a  mortgagee  deceased  had  entered  for  condition 
broken,  agreeing  that  the  mortgagor  might  remain  in  pos- 
session, paying  interest  as  rent  till  foreclosure  or  redemp- 
tion. The  demandants  sue  as  heirs  of  the  mortgagee.  Held, 
the  action  could  not  be  maintained.  Wilde,  J.,  says  :  *  — 
"  The  Court  might  have  pleaded  the  mortgage,  and  restricted 
the  demandants  to  a  conditional  judgment, —  although  the 
mortgagee  entered,  he  had  not  recovered  possession  within 
the  true  meaning  of  the  statute  ;  he  had  the  legal  but  not  the 
actual  possession  ;  and  therefore  the  action  should  have  been 
brought  by  the  administrator." 

69  c.  A  statute  provided  that  the  mortgagee  should  release 
on  payment,  after  recovering  possession.     A  possession  ob- 

1  Reading  of   Judge    Trowhridgc,   8  »  4  pjck.  19. 
Mass.  554.                                                                              *  Page  21. 

2  10  Mass.  18. 


CH.  XI.]  ESTATE   OF   THE  MORTGAGEE.  253 

tained  by  his  administrator,  by  entering  without  suit,  was 
held  within  the  equity  of  the  statute.^ 

69  d.  A  mortgagee  died,  after  recovering  a  conditional 
judgment.  His  administrator  brings  a  writ  of  entry  against 
a  devisee  of  the  mortgagor  to  recover  possession,  having  ulti- 
mately entered  under  the  former  judgment.  Held,  the  ac- 
tion might  be  maintained.^ 

69  e.  In  Maine,  by  the  statute  of  1789,  an  administrator 
could  assign  a  mortgage ;  and  this  might  be  done  by  a  quit- 
claim deed,  if  the  intent  so  appeared."^ 

69/.  If  an  executor  takes  a  mortgage  to  secure  a  debt 
due  the  estate,  and  forecloses,  it  enures  to  the  benefit  of  the 
estate,  the  legatees  or  heirs,  under  the  direction  of  the  Probate 
Court.  The  executor  gains  no  title,  except  in  his  official 
capacity.* 

70.  The  question,  what  words  in  a  will  are  necessary  to 
pass  a  mortgage  held  by  the  testator,  has  been  often  dis- 
cussed in  English  and  American  cases,  and  Jias  been  the 
subject  of  somewhat  conflicting  decisions.  In  Ballard  v. 
Carter,^  Parker,  C.  J.,  remarks  upon  the  clause  of  the  will  in 
question  in  that  case,  as  follows  :  —  "  Whether  this  convey- 
ance is  to  be  considered  a  mere  pledge  or  security  for  the 
money,  or  as  giving  a  title  to  land  so  as  to  constitute  real 
estate  in  the  hands  of  the  testator,  it  must  be  considered  as 
devised  under  the  words,  '  all  my  estate,  whether  real  or  per- 
sonal, which  may  remain,'  &c.  This,  however,  according  to 
some  of  the  authorities,  might  be  questioned.  In  3  Ves. 
jun.  348,  it  was  determined  that  the  legal  estate  of  a  mort- 
gagee in  mortgaged  premises  did  not  pass  by  a  general  resid- 
uary devise  of  '  all  his  estate  and  effects  whatsoever  and 
wheresoever.'  So  in  1  Atk.  605,  it  was  decided,  that  by  a 
devise  of  all  lands,  tenements,  and  hereditaments,  a  mort- 
gage in  fee  should  not  pass.     But  in  2  P.  Wms.  198,  it  is 


1  Scott  r.  McFarhind,  3  Mass.  311.  ■»  Thurston  v.  Kennett,  2  Fost.  151. 

-  Kichardson  v,  Hildretli,  8  Cash.  224.  '->  5  Pick.  115.    See  Field's,  &c.  7  Eng. 

3  Crookcr  v.  Tcmell,  31  Maine.  306.  Law  &  Etj.  260. 

VOL.  I.  22 


254  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

held,  that  a  devise  by  a  trustee  of  all  the  rest  of  his  real 
estate  will  pass  the  trust  estate,  and  in  the  note  of  Butler  to 
Cd".  Lit.  203,  (note  96,)  it  seems  to  be  considered  by  that 
learned  editor,  that  a  mortgage  will  pass  under  such  a  de- 
vise, and  the  cases  of  Marlow  v.  Smith,  2  P.  Wms.  198,  and 
Attorney- General  v.  Philips,  are  cited.  It  would  be  a  fruit- 
less task  to  go  over  all  the  cases  of  the  English  books  on 
this  subject,  with  a  view  to  reconcile  them.  It  is  enough  for 
us,  that  under  the  terms  of  the  residuary  clause  in  this  will, 
it  being  expressly  a  devise  of  both  real  and  personal  estate, 
we  are  satisfied  that  this  estate  would  have  passed,  had  it 
remained  unchanged  until  the  death  of  the  testator." 

71.  So  Chancellor  Kent  remarks,^  that  a  mortgagee  being, 
till  foreclosure,  a  trustee  for  the  mortgagor,  the  mortgage 
will  pass  under  general  words  in  the  will  of  the  former  relat- 
ing to  real  estate,  unless  a  contrary  intent  is  to  be  gathered 
from  the  language  of  the  will,  or  the  testator's  purposes  and 
objects,  [p) 

72.  Devise  of  all  the  rest  and  residue  of  the  testator's  free- 
hold, leasehold,  and  copyhold  estates  in  possession  or  rever- 
sion, with  all  his  goods,  chattels,  &c.,  mortgages  and  debts, 
subject  to  the  payment  of  his  debts,  &c.,  and  apj^ointing  the 
legatee  to  be  his  executor.  Held,  the  legal  estate  in  the 
mortgaged  premises  descended  to  the  heir,  because  the  de- 

1  Jackson  v.  Dc  Lancy,  13  Johns.  537. 


(p)  Upon  tbc  same  subject,  the  same  learned  Judge  further  remarks :  — 
"  On  reading  these  latter  cases,  we  are  almost  involuntarily  led  to  pause, 
and  wonder  at  the  extraordinary  and  very  unaccountable  perplexity,  doubt, 
and  alternation  of  opinion,  which  they  discover  on  this  point.  The  learned 
men  referred  to  in  these  cases  do  not  appear  to  me,  with  all  proper  humility 
be  it  sjjoken,  to  have  examined  this  question  with  the  diligence  or  the  talent 
worthy  of  the  eminent  reputation  they  bear.  If  indeed  they  did,  the  re- 
ports have  done  them  great  injustice.  Lord  Eldon  had  studied  the  question 
with  profound  attention,  and  he  showed  it  to  be  perfectly  clear  and  settled ; 
but  in  the  other  modern  chancery  cases  on  this  point,  we  find  nothing  but 
wliat  tends  to  expose  the  inefTiciency  of  legal  learning,  and  the  weakness  of 
human  reason."    Jackson  v.  DeLancy,  13  Johns,  bb'd. 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  255 

vise  was  made  subject  to  payment  of  debts,  and  to  this  pur- 
pose the  money  secured,  and  not  the  land,  was  alone  appli- 
cable.i 

73.  Devise  of  all  the  rest,  residue,  and  remainder  of  and  in 
all  and  singular  the  property,  estate,  and  effects  which  the 
testator  should  be  possessed  of  or  entitled  to,  or  over  which 
he  should  have  a  disposing  power,  at  his  decease,  of  what- 
soever nature  or  kind  the  same  might  be.  Held,  the  legal 
estate  in  mortgaged  premises  did  not  pass  by  this  devise, 
but  descended  to  the  heir.^ 

74.  The  legal  estate  in  property,  vested  in  a  testator  by 
way  of  mortgage,  does  not  pass  under  the  terms,  "  securities 
for  money,"  or  "  money  invested  on  any  security."  ^  But  a 
bequest  of  personal  estate  passes  mortgages.* 

74  a.  A  testator  sold  the  land  devised,  taking  back  a  bond 
and  mortgage  for  part  of  the  price.  Held,  the  devise  was 
revoked,  and  the  bond  and  mortgage  did  not  pass  by  the 
wiU.5 

75.  The  rule,  of  treating  a  mortgage  as  personal  property, 
in  a  devise,  has  been  held  not  applicable  to  lands  originally 
held  under  old  mortgages.  These  pass  by  a  general  devise, 
though  no  release  of  the  equity  of  redemption  appears.^ 
Upon  this  subject  Lord  Loughborough  says  : "  —  "  What  is 
personal  estate  is  to  be  decided  at  the  time  of  the  death.  K 
it  is  no  longer  money,  but  land,  by  a  release  of  the  equity  of 
redemption,  it  will  go  to  the  devisee  of  the  freehold  or  lease- 
hold estate ;  and  I  would  never  suffer  the  personal  repre- 
sentative to  take  that  as  personal  estate.  It  is  no  longer 
money.  At  the  date  of  the  will,  I  take  it,  upon  the  report, 
it  was  mere  money,  a  mortgage  title ;  but  if  he  lived  the 
period,  when  all  the  equity  of  redemption  was  gone,  then  it 
exists  in  no  shape  as  part  of  his  property,  but  as  land,  held 
either  by  a  leasehold  title  or  a  freehold  title ;  and  I  would 


1  Silvester  r.  Jarman,  10  Price,  78.  *  Asay  v.  Hoover,  5  Barr,  21. 

-  Harnett,  &c.,  McLcl.  &  Y.  292.  5  Beck  v.  McGillis,  9  Barh.  35. 

3  Ex  parte  Pricl,   (Vice-Chancellor's  '^  Atty.  &c.  v.  Bowycr,  5  Ves.  299. 

Court,)  Law  Eep.  June,  1850,  p.  92.  "  lb.  303. 


256  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

never  take  it  up  again  as  money  in  favor  of  the  executor. 
There  is  no  equity  between  the  heir  and  executor,  or 'the 
devisee  and  executor." 

76.  The  interest  of  a  mortgagee,  deceased,  is  so  strictly 
construed  as  personal  estate,  that  though  the  heir  be  in  pos- 
session, after  breach  of  condition,  and  no  want  of  assets,  he 
shall  be  decreed  to  convey  to  the  administrator.^ 

77.  But  if  the  debt  be  paid,  and  a  bill  brought  for  recon- 
veyance, the  heir  of  the  mortgagee  must  be  made  party .^ 

78.  A  statute  of  Massachusetts,  1788,  ch.  51,  provided, 
that  mortgaged  premises  should  be  assets  in  the  hands  of 
executors  and  administrators,  as  personal  estate.  Also,  that 
the  executor  or  administrator  of  a  deceased  mortgagee,  hav- 
ing recovered  possession  of  the  estate  by  a  suit  at  law, 
should  be  seized  to  the  sole  use  and  behoof  of  the  widow 
and  heirs,  &c. ;  with  a  proviso,  that  the  property  might  be 
distributed  by  the  Judges  of  Probate  as  personal  estate,  un- 
less necessary  for  payment  of  debts,  &c.,  in  which  case  it 
might  be  sold  under  a  license  in  the  usual  mode.  The 
Court  held,  that  this  statute  had  the  effect  of  vesting  all 
authority  over  mortgaged  estates,  not  taken  possession  of  by 
the  mortgagee  in  his  life,  in  his  executor,  &c.,  as  trustee  of 
creditors  and  others  interested  in  the  personal  estate.^ 

79.  In  the  case  of  Boylston  v.  Carver,*  this  provision  was 
held  not  to  vest  in  the  widow,  &c.,  an  executed  use,  under 
the  statute  of  uses,  but  to  give  the  administrator  a  trust,  to 
continue  till  certain  purposes  are  accomplished  thereby.  If 
necessary  for  payment  of  debts,  &c.,  he  is  to  sell  under  a 
license ;  if  not,  the  Probate  Court  will  pass  a  decree  of  dis- 
tribution among  those  entitled  to  the  personal  property,  and 
it  may  vest  in  them  by  virtue  of  such  decree,  declaring  the 
use,  of  the  statute  of  uses,  and  the  statute  authorizing  such 
distribution ;  or  perhaps  the  administrator,  in  execution  of 


'  Ellis  V.  Guavas,  2  Clia.  Cas.  50.  Sec  McCall  v.  Lenox,  9  S.  &  R.  304  ; 

-  Silvester  v.  Jarman,  10  rrice,  "8.  Gay  v.  Miiiot,  3  Gush.  352. 

^  Johnson  V.  Ikirtlctt,  1 7  Pick    484.  "»  4  Mass.  009. 


en.   XI.]  ESTATE   OF   THE   MORTGAGEE.  257 

his  trust,  may  be  required  to  execute  a  deed  without  war- 
ranty, conformably  to  such  decree. 

80.  In  the  case  of  "Webber  v.  'W'ebber,^  the  Court  in  Maine 
were  of  opinion,  that  the  words  "  seized  to  the  use  of  the 
widow  and  heirs,"  should  be  so  construed  as  to  vest  the  es- 
tate in  the  heirs,  after  the  period  of  redemption  had  expired, 
and  all  the  purposes  been  accomplished  for  which  the  admin- 
istrator became  a  trustee. 

81.  In  the  case  of  Johnson  v.  Bartlett,^  where  an  admin- 
istrator had  thus  recovered  possession  of  the  land  mortgaged, 
the  mortgagor  conveyed  to  him  all  his  right  and  title,  speci- 
fying it  as  a  right  to  redeem  the  mortgage,  but  not  expressly 
as  administrator.  It  was  held,  that  the  conveyance  operated 
as  a  release  of  the  equity  of  redemption,  and  vested  an  abso- 
lute title  in  the  administrator,  but  subject  to  the  same  trusts 
as  his  former  estate  ;  and  that  a  sale  by  him,  without  license, 
either  passed  no  title,  or  one  subject  to  the  like  trusts  in  the 
hands  of  the  purchaser,  who  should  be  presumed  to  have 
notice  thereof,  inasmuch  as  they  were  created  by  law,  and 
depended  upon  acts  and  conveyances  which  were  matter  of 
record.  The  Court  remarked,  that  the  administrator  had  the 
same  right  to  foreclose  the  mortgage  in  this  way  as  in  any 
other,  and  this  was  the  real  intent  and  effect  of  the  trans- 
action. A  contrary  construction  would  charge  the  parties 
with  fraud,  which  is  never  to  be  presumed. 

82.  In  New  Hampshire,  an  administrator  may  foreclose 
by  entry  and  possession  for  one  year,  as  the  deceased  might 
have  done.  Upon  foreclosure,  the  legal  title  vests  in  the 
heirs,  subject  to  his  rights  as  trustee.  It  is  there  held  the 
duty  of  the  administrator  to  foreclose  the  mortgage,  if  the 
debt  is  not  paid ;  but  he  may  elect  between  an  action  and  a 
peaceable  entry  for  this  purpose.^ 

83.  It  has  been  held  in  Massachusetts,  that  the  estate  of  a 
deceased  mortgagee  in  the  mortgage,  though  not  strictly  real 
property,  so  far  partakes  of  that  character,  as  to  require  a 

1  6  Greenl.  127.  -  17  Pick.  477.  3  Gibson  i-.  Bailey.  9  N.  H.  168. 

22* 


258  THE   LAW  OF   MORTGAGES.  [CH.  XI. 

license  from  the  Probate  Court,  to  justify  a  sale  of  it  by  the 
administrator. 

84.  In  the  case  of  Blair,^  a  petition  was  presented  to  the 
Judge  of  Probate  by  administrators,  for  leave  to  seU  a  note 
and  mortgage,  not  due,  and  on  which  mortgage  no  posses- 
sion had  been  taken.  The  petition  set  forth  that  the  estate 
was  insolvent,  and  would  be  prejudiced  by  waiting  for  pay- 
ment of  the  note  at  maturity.  The  Probate  Court  dis- 
missed the  petition,  on  the  ground  that  such  sale  might  be 
made  without  license,  and  the  petitioners  appealed.  Held, 
the  decree  should  be  reversed,  and  the  case  remanded  to  the 
Court  below.  Shaw,  C.  J.,  says:^ — "We  are  of  opinion, 
that  the  Court  of  Probate  has  authority  to  grant  a  license,  in 
such  cases,  and  that  the  petition  presents  a  fit  case  for  the 
exercise  of  it.  It  may  be  probable  that  the  legislature,  by 
the  terms  '  real  estate  so  held  by  an  executor,'  &c.,  had  more 
immediate  reference  to  mortgaged  estate,  on  which  the  exec- 
utor, &c.,  had  entered  in  pais  or  by  a  judgment.  But  the 
terms  are  broad  enough  to  cover  all  estate  mortgaged  to  the 
testator.  The  right  to  enter,  and  the  right  to  maintain  a 
real  action,  given  by  §  11,  imply  that  the  executor  or  admin- 
istrator has  a  qualified  seizin,  and  holds  the  estate.  And 
the  reason  of  the  provision  for  a  license  to  seU  applies  as 
strongly  to  estate  of  which  the  administrator  has  not  ob- 
tained possession,  as  to  that  on  which  he  has  entered.  It 
appearing  to  us,  that  a  license  is  necessary,  by  law,  to  enable 
the  administrator  to  sell  the  said  mortgaged  estate  and  the 
note  secured  thereby,  the  case  is  to  be  remanded."  [q) 

85.  In    Gibson  v.  Bailey,'^  decided   in    New  Hampshire, 

1  13  Met.  12G.  -  13  Met.  127.  ^  9  jj.  h.  173. 

{q)  By  St.  1849,  ch.  47,  any  real  estate  held  by  an  executor,  &c.,  in 
mortgage,  may  be  sold,  before  foreclosure,  in  llic  same  manner  as  personal 
estate  is  sold.  And  by  St.  1851,  ch.  288,  all  transfers  of  mortgaged  real 
estate  by  executors,  &c.,  subsequent  to  the  Rev.  Sts.,  and  prior  to  the  act  of 
1849,  arc  declared  eflcctual  and  confirmed,  though  made  without  license  of 
Court. 


CH.   XI.]  ESTATE   OF   THE   MORTGAGEE.  259 

Parker,  C.  J.,  remarks  upon  this  subject:  —  "whether  the 
administrator  has,  in  such  case,  any  right  to  sell  except 
under  a  license  from  the  Judge  of  Probate  ;  and  whether  the 
property,  when  the  mortgage  is  foreclosed,  is  to  be  distribu- 
ted as  personal  estate  ;  or  whether,  in  case  the  administrator 
does  not  sell,  it  is  to  be  treated  as  if  the  absolute  fee  had 
been  conveyed  to  the  intestate  at  the  date  of  the  mortgage, 
so  that  a  widow  would  be  entitled  to  dower  only,  are  ques- 
tions upon  which  it  is  not  necessary  for  us  now  to  express 
an  opinion." 


260 


THE   LAW   OF    MORTGAGES. 


[CH.  XII. 


CHAPTER    XIL 

ESTATE  OF  THE  MORTGAGEE.  WHAT  CLAIMS  AND  DEMANDS 
SHALL  BE  SECURED  BY  THE  MORTGAGE.  TACKING.  FUTURE 
ADVANCES. 


1.  Construction  of  the  condition  of  a 
mortgage.  Ambiguity  of  description. 
Variance  between  the  mortgage  and 
personal  security,  &c. 


11.  Tacking, 

35.  Whether  adopted  in  the  United 
States. 

53.  Future  or  subsequent  advances. 


1.  In  considering  the  nature  of  the  mortgagee's  title,  and 
the  connection  between  the  mortgage  and  the  debt  thereby 
secured,  it  is  proper  to  inquire,  for  what  claims  and  demands 
a  mortgage  shall  stand  as  security.  Ordinarily,  the  debt 
designed  to  be  secured  is  so  distinctly  specified  in  the  mort- 
gage-deed itself,  as  to  admit  of  no  doubt,  construction,  or 
enlargement.  Sometimes,  however,  questions  have  arisen 
upon  this  point,  either  from  an  ambiguity  of  description,  or 
an  attempt  to  extend  th^  operation  of  the  mortgage  to  claims 
which  are  only  by  implication  to  be  brought  within  its  terms.(a) 
And  it  wiU  be  seen,  that  the  law  itself  has  in  some  cases 
sanctioned,  by  virtue  of  an  established  rule  of  equity  juris- 


(a)  Sec  Mobile,  &c.  v.  Talman,  15  Ala.  472.  A  similar  ambiguity  may 
arise  in  regard  to  the  name  of  a  party.  Thus  a  note  was  made  to  E.  II., 
payable  on  demand  with  interest.  Some  months  afterwards,  the  promisor 
made  a  mortgage  to  E.  II.  3(1,  conditioned  for  payment  of  a  note  of  the 
same  date,  for  the  same  sum,  on  demand,  with  interest.  Held,  in  an  action 
on  the  mortgage,  parol  evidence  was  admissible,  that  E.  H.  and  E.  H.  3d, 
were  partners,  doing  business  in  the  name  of  E.  II.,  and  that  the  note  was 
made  for  a  debt  due  the  firm,  and  was  the  note  referred  to  and  secured  by 
the  mortgage.  Hall  v.  Tufts,  8  Pick.  455.  In  the  same  case,  the  mortgage 
described  the  note  as  dated  one  thousand  seventeen  hundred  and  ninety-eight. 
The  Court  remarked,  (p.  400)  "  This  is  so  palpably  a  clerical  mistake,  that 
no  reliance  is  made  upon  it  by  the  counsel." 


en.  XII.]     ESTATE   OF  THE   MORTGAGEE.  —  TACKING,  ETC.         261 

prudence,  a  still  wider  and  more  important  enlargement  of 
the  literal  terms  of  a  mortgage. 

2.  In  regard  to  the  date  and  time  of  payment  of  a  mortgage, 
it  has  been  held,  that  a  mortgage  dated  1837,  and  payable  in 
1830,  is  payable  immediately,  and  parol  evidence  is  inadmis- 
sible to  the  contrary.'  (i)     {Infra,  §  4.) 

2  a.  In  case  of  a  mortgage,  conditioned  to  pay  "  $1,256.50, 
with  interest,  after  the  first  day  of  April  next,  in  fourteen 
equal  annual  instalments,  on  the  first  day  of  April  of  each 
and  every  year  after  the  first  day  of  next  April,"  the  obligor 
is  bound  to  pay  the  sum  in  fourteen  equal  annual  instal- 
ments, on  the  first  day  of  April  in  each  year,  with  interest  on 
each  instalment,  payable  at  the  time  it  became  due.^ 

2  b.  A  recital  in  a  mortgage,  that  the  mortgagor  "  is  in- 
debted "  to  the  mortgagee  in  a  certain  sum,  for  which  "  he 
has  given  his  checks,"  &c.,  does  not  imply  that  the  mortgage 
was  made  for  an  antecedent  debt.^ 

3.  Upon  the  general  ground,  that  the  personal  security  is 
the  principal,  and  the  mortgage  merely  incident  or  collateral, 
it  has  been  held,  that  where  the  mortgage  is  conditioned  to 
pay  a  particular  sum,  but  also  to  secure  a  bond,  the  condition 
of  w^hich  covers  aU  the  liabilities  of  the  mortgagor  to  the 
mortgagee,  the  mortgage  shall  be  construed  in  conformity 
with  the  bond.* 

•  4.  But  where  a  mortgage  contained  a  condition,  that  the 
mortgagor  should  pay  the  debt  according  to  the  condition  of 
a  bond  recited  in  the  deed,  by  which  it  was  made  payable  on 
a  day  already  past;  held,  the  mortgage  was  still  valid  in 
equity.^     {Supra,  §  2.) 

1  Fuller  r.  Acker,  1  Hill,  473.     Ace.  ^  Bank,  &c.  v.  Whyte,  3  Md.  Ch.  508. 

Martin  v.  Rapelye,  3  Edw.  Ch.  229.  See  ■*  New  Hampshire,  &c.  v.  Willavd,  10 

Mobile,  &c.  v.  f  alman,  15  Ala.  472.  N.  H.  210. 

'•^  French  v.  Kennedy,  7  Barb.  452.  ^  Hughes  v.  Edwards,  9  Wheat.  489. 


(6)  But  it  has  been  held,  that  a  note,  differing  in  some  respects  only  iVom 
that  described  in  the  mortgage,  may  be  shown  by  parol  to  be  the  one  in- 
tended.    Williams  r.  Hilton,  35  Maine,  547. 


262  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

5.  A  mortgage  was  conditioned  to  pay  "  on  demand,  with 
interest,  the  sum  of  $1,500,  which  I  am  indebted  to  him,  on 
book  and  by  several  notes,  the  exact  date  and  amount  not 
recollected,  but  amounting  in  the  whole,  together  with  the 
debt  on  book,  to  $1,500,  or  thereabouts."  At  the  making 
of  the  mortgage,  the  mortgagor  was  in  failing  cu'cumstances, 
and,  in  order  to  secure  the  mortgagee,  it  was  necessary  to 
make  the  deed  before  the  exact  indebtedness  could  be  ascer- 
tained. The  amount  actually  exceeded  $1,500.  Held,  the 
mortgage  was  valid  against  creditors  and  subsequent  incum- 
brancers.^ 

6.  A  party  owing  $10,000,  as  the  balance  of  an  account, 
gave  a  mortgage  for  $3,000.  Held,  the  mortgage  was  not 
void  for  uncertainty  against  creditors.^  But  where  a  mort- 
gage was  conditioned  to  pay  a  debt  due  by  note,  dated  May 
10,  1834,  on  demand,  with  interest ;  held,  invalid  against  a 
subsequent  mortgage.^ 

7.  A  mortgage  recited,  that  on  settlement  of  accounts  the 
mortgagor  was  indebted  to  the  mortgagee  in  a  certain  sum. 
Held,  such  settlement  did  not  include  a  note  made  two  days 
before.^ 

8.  A  member  of  an  unincorporated  banking  company 
executed  a  mortgage  to  the  officers 'of  the  company,  reciting 
that  it  was  to  secure  his  bond  for  his  subscription  for  stock, 
and  to  bind  him,  in  conjunction  with  each  stockholder,  "  to 
all  and  singular,  the  holders  of  the  notes,  bills,  checks,  and 
other  liabilities  of  the  said  company,  now  existing,  or  which 
may  hereafter  exist,  at  any  time  within  fifteen  years  ;  "  pro- 
vided that  if  he  paid  and  satisfied  the  bond,  and  the  officers 
of  the  company  and  their  successors,  for  the  stock  subscribed 
at  the  periods  when  due,  and  should  pay  off  and  discharge  all 
the  notes,  &c.  of  the  company,  the  mortgage  should  be  void. 
Held,  the  mortgage  was  not  only  a  security  for  the  subscrip- 
tion, but  also  to  the  creditors  of  the  company  for  their  claims  ; 

1  Merrills  v.  Swift,  18  Conn.  257.  ■'  Hart  i'.  Clmlkcr,  14  Conn.  77. 

■^  Chester  v.  Wheelwright,  15  Conn.         '  Tharp  v.  Fcltz,  6  B.  Mon.  6, 
502. 


CH.  Xir.]   ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.    263 

and  that  a  creditor  of  the  company,  to  whom  the  mortgage 
was  assigned,  might  bring  a  bill  to  foreclose,  when  his  own 
dpbt  became  due,  though  no  instalment  was  due  on  the 
mortgagor's  bond  for  his  subscription.^ 

9.  Mortgage  to  secure  a  certain  sum  which  may  be  fur- 
nished in  materials  towards  the   erection  of  a  house  for  the 
mortgagor.     Held,  this  did  not  cover  a  liability  assumed  by  • 
the  mortgagee  as  surety  or  guarantor  for  the  mortgagor.^ 

9  a.  A  mortgage  specified  the  liability  of  the  surety  "  at 
about  $2,000,"  when  in  fact  it  amounted  to  only  half  that 
sum.  The  mortgage  did  not,  however,  profess  to  state  with 
accuracy  the  amount  of  the  liability,  and  the  actual  liability 
was  at  the  time  unascertained.  Held,  that  this  over-state- 
ment was  not  conclusive  evidence  of  fraud.^ 

9  b.  If  the  condition  is  to  indemnify  a  surety,  and  a  certain 
sum  is  mentioned,  be  the  debts  more  or  less  for  which  he  is 
surety,  the  mortgagor  will  be  holden  to  pay  for  all  the  debts 
for  which  he  was  surety.^ 

10.  One  becoming  surety  for  another,  for  a  certain  sum, 
took  from  him  a  note  for  that  amount,  secured  by  mortgage, 
and  afterwards  paid  the  debt.  Held,  the  mortgage  was 
invalid  against  a  subsequent  mortgagee."^ 

10  a.  In  Parker  v.  Parker,^  a  mortgage  was  conditioned  for 
payment  of  a  certain  sum  on  a  certain  day,  the  year  being 
left  blank,  according  to  the  tenor  of  a, note  for  the  same  sum. 
The  plaintiff,  the  mortgagee,  brings  an  action  for  breach  of 
the  covenants  in  the  mortgage.  It  appeared  by  parol  proof, 
that  the  note  was  never  made,  and  only  part  of  the  money 
loaned,  for  which  a  receipt  was  given.  Held,  the  action 
did  not  lie.  Parker,  C.  J.,  says  :  ^  —  "  The  deed  must  be 
considered  as  never  having  been  executed  and  delivered  for 
the  purpose  of  having  effect  according  to  its  tenor.  The 
blank  shows  that  something  further  was  to  be  done ;  no  time 

1  Wall  1-.  Boisgerard,  11  Sm.  &  Mar.  *  Orr  v.  Hancock,  1  Koot,  265. 
574.  5  North  v.  Eeklcn,  13  Conn.  376. 

2  Doyle  V.  White,  26  Maine,  341.  e  17  ]iijass.  370. 

3  Bumpas  v.  Dotson,  7  Humph.  310.  ■  P.  375. 


264  THE   LAW   OF  MORTGAGES.  [CH.    XII. 

of  payment  is  limited  ;  so  that  it  would  be  necessary  to  resort 
to  parol  evidence.  The  same  species  of  evidence  might  be 
given,  to  show  that  that  sum  had  never  been  lent.  The 
bargain  was  incomplete,  and  never  took  effect." 

10  b.  A  mortgage,  given  to  secure  a  note,  described  the 
note  as  one  for  the  penal  sum  of  $787.  The  note  produced 
•  was  for  that  sum  without  a  penalty.  Held,  the  deed  was  not 
invalid  for  this  cause.^ 

10  c.  Mortgage,  to  secm*e  a  sum  of  money,  to  be  ascer- 
tained by  the  award  of  two  persons,  chosen  by  the  parties, 
and,  in  case  of  disagreement,  an  umpire  to  be  chosen  by  the 
arbitrators.  The  referees,  taking  the  data  in  the  mortgage, 
were  to  make  out  their  award,  and  return  it  to  the  parties  in 
writing  within  thirty  days  of  their  appointment.  The  award 
failed  through  misconduct  of  the  arbitrators.  Held,  the  mort- 
gage was  thereby  defeated,  and  the  mortgagee  could  have  no 
relief  in  equity,  upon  a  bUl  for  the  sale  of  the  property,  and 
specific  execution  of  the  contract.^ 

10  d.  A  mortgage  recited,  that  the  mortgagees  were  in- 
dorsers  on  two  bills,  when  in  fact  they  were  indorsers  on  one 
only,  and  paid  the  other  for  the  honor  of  the  drawer  before 
the  mortgage  was  made.  Held,  the  mortgage  was  still 
valid.'^ 

10  e.  Several  mortgages,  appearing  on  their  face  to  be  for 
distinct  debts  in  equity,  may  be  shown  to  be  merely  addi- 
tional evidence  of  and  security  for  the  same  debt.* 

10/.  Bond  for  $2,000,  with  a  mortgage  to  secure,  and 
referring  to  the  bond,  but  leaving  a  blank  for  the  amount. 
The  mortgage  was  recorded,  but  soon  after,  the  mortgagor 
executed  a  sealed  instrument,  stating  that  the  sum  was 
omitted  by  mistake,  which  writing  was  attached  to  the  regis- 
try. A  second  mortgage  was  made,  the  mortgagee  having 
seen  the  record  of  the  former.  Held,  the  first  mortgage  should 
prevail.^ 


1  Frink  v.  Branch,  IG  Conn.  200.  *  Anderson  v.  Davie.s,  6  Munf.  484. 

2  Kmcjrv  V.  Owinss,  7  Gill,  488.  ^  Lambert  v.  Hall,  3  Ilalst.  Ch.  410, 
='  Fetter  V.  Cirodc,  4  B.  I\l(jnr.  482.            651. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.     265 

10  g\  Where  a  mortgage  is  made  to  secure  certain  no^ 
described  therein,  but  which  by  mistake  are  left  with  the 
mortgagor,  and  others  taken  by  the  mortgagee;  the  mort- 
gagee is  entitled  to  relief  in  equity,  against  a  subsequent 
mortgagee.     So,  if  the  notes  are  wrongly  described.' 

11.  In  this  connection  may  be  considered  the  subject  of 
tacking,  which,  though  as  a  distinct  right  or  claim  compara- 
tively unimportant,  as  will  be  seen,  in  American  law,  occu- 
pies much  space,  and  has  given  rise  to  numerous  and  nice 
questions  and  distinctions,  in  the  English  cases;  and  still 
continues  to  furnish  many  analogies  and  illustrations,  even 
where  the  doctrine  itself  is  for  the  most  part  obsolete. 

12.  Judge  Story  defines  the  practice  of  tacking",  as  "  uniting 
securities,  given  at  different  times,  so  as  to  prevent  any  inter- 
mediate purchasers  from  claiming  any  title  to  redeem,  or 
otherwise  to  discharge,  one  lien,  which  is  prior,  without 
redeeming  or  discharging  the  other  liens  also,  which  are 
subsequent  to  his  own  title.  Thus,  if  a  third  mortgagee, 
without  notice  of  a  second  mortgage,  should  purchase  in  the 
first  mortgage,  by  which  he  would  acquire  the  legal  title,  the 
second  mortgagee  would  not  be  permitted  to  redeem  the 
first  mortgage,  without  redeeming  the  third  mortgage  also  ; 
for  in  such  a  case,  equity  tacks  both  mortgages  together  in 
his  favor.  And  in  such  a  case  it  will  make  no  difference, 
that  the  third  mortgagee,  at  the  time  of  purchasing  the  first 
mortgage,  had  notice  of  the  second  mortgage  ;  for  he  is  still 
entitled  to  the  same  protection."  ^  (c) 

1  Porter  i-.  Smith,  13  Verm.  492.  tlicn,  18  L.  J.  ch.  281,  N.  S.;  Young  v. 

"Story's  Et|.   '^412.     See  Williams  Eni;lisli,  7  Beav.  10;  Watts  v.  Symes, 

V.    Owen,    1.3    Sim.   597 ;  Aldworth   v.  8  Eng.  Law  vt  Eq.  247. 
Robinson,  2  Beav.  287 ;  Pelby  v.  Wa- 


(c)  A  tliird  mortgagee  may  tack,  though  he  buy  in  the  first  mortgage 
pendente  lite,  pending  a  bill  by  the  second  mortgagee  to  redeem  it.  This  is 
upon  the  ground,  that  he  acquires  the  right  by  the  act  of  lending  the  money 
without  notice,  and  is  not  bound  to  take  measures  for  his  protection,  till 
actual  danger  occurs.     But  the  right  will  not  be  accorded  to  liim,  after  a 

VOL.  I.  23 


266  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

W^-  The  doctrine  of  tacking  has  been  defended  upon  various 
grounds.  It  is  said,  in  (Eqnali  jure.,  melior  est  conditio  possi- 
dentis.  Where  the  equity  is  equal,  the  law  shall  prevail ; 
and  he  that  hath  only  a  title  in  equity  shall  not  prevail  against 
a  title  by  law  and  equity  in  another.  So  the  right  has  been 
said  to  be  a  plank,  gained  by  the  third  mortgagee  in  a  ship- 
wreck, tabula  in  naufra^io.  In  Wortley  v.  Birkhead,'  Lord 
Hardwicke  said :  — "  As  to  the  equity  of  this  Court,  that  a 
third  incumbrancer,  having  taken  his  security  of  mortgage 
without  notice  of  the  second  incumbrance,  and  then,  being 
puisne.,  taking  in  the  first  incumbrance,  shall  squeeze  out  and 
have  satisfaction  before  the  second ;  that  equity  is  certainly 
established  in  general,  and  was  so  in  Marsh  v.  Lee,  by  a  very 
solemn  determination  by  Lord  Hale,  who  gave  it  the  term 
of  the  creditor's  tahida  in  naufragio.  That  is  the  leading 
case.  Perhaps  it  might  be  going  a  good  way  at  first ;  but  it 
has  been  followed  ever  since  ;  and,  I  believe,  was  rightly 
settled  only  on  this  foundation  by  the  particular  constitution 
of  the  law  of  this  country.  It  could  not  happen  in  any  other 
country  but  this  ;  because  the  jurisdiction  of  law  and  equity 
is  administered  here  in  different  courts,  and  creates  different 
kinds  of  rights  in  estates.  And  therefore  as  courts  of  equity 
break  in  upon  the  common  law,  where   necessity  and  con- 

1  2  Ves.  573. 


decree  to  settle  priorities.  Coote,  476,  478;  Brace  v.  Duchess,  &c.  2  P. 
Wms  491  ;  1  Eden,  530;  Bristol  v.Hungerford,  2  Vern.  524  ;  Knott,  11  Vez. 
619.  If  a  creditor  by  judgment,  statute,  or  recognizance,  buys  in  the  first 
morti^agc,  he  shall  not  tack  the  two  .securities;  for  such  a  creditor  cannot  be 
called  a  purchaser,  nor  has  he  any  riglit  to  the  land  ;  having  neither y(«  in 
re  nor  ad  rem,  but  a  mere  lien,  which  it  is  doubtful  whether  he  will  ever 
enforce.  Besides  which,  the  judgment  creditor  docs  not  lend  his  money  on 
the  immediate  view  or  contemplation  of  the  land,  nor  is  he  deceived  or  de- 
frauded, though  his  debtor  had  before  made  twenty  mortgages  of  his  estate; 
but  a  mortgagee  is  defrauded  or  deceived,  if  the  mortgagor  has  already 
mortgaged  his  land  to  another.  Coote,  478;  Brace  v.  Duchess,  &c.  2  P. 
AVm.s.  401:2  Vez.  602. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.    267 

science  require  it,  still  they  allow  superior  force  and  strength 
to  a  legal  title  to  estates  ;  and,  therefore,  where  there  is  a 
legal  title  and  ^l^ity  on  one  side,  this  Court  never  thought 
fit,  that  by  reason  of  a  prior  equity  against  a  man  who  had  a 
legal  title,  that  man  should  be  hurt ;  and  this,  by  reason  of 
that  force,  this  Court  necessarily  and  rightly  allows  to  the 
common  law  and  to  legal  titles.  But  if  this  had  happened 
in  any  other  country,  it  could  never  have  made  a  question  ; 
for  if  the  law  and  equity  are  administered  by  the  same  juris- 
diction, the  rule  qui  prior  est  tempore  potior  est  in  jure  must 
hold." 

14.  Alderson  (Baron)  remarks  :i  —  "The  right  of  tacking 
seems  to  have  been  established  upon  this  principle;  —  that 
where  a  mortgagee  is  in  possession  of  the  legal  estate  in  two 
properties  as  a  security  for  money  lent  on  them,  a  court  of 
equity  will  not  allow  the  person  entitled  to  the  equity  of 
redemption,  to  redeem  either  of  them,  unless  he  redeems 
both ;  and  allows  the  mortgagee  a  lien  on  the  whole  for  his 
whole  debt."  So  Judge  Story  says  i^  —  "  When  we  come  to 
the  doctrine  of  tacking,  equity  there  looks  to  the  law,  and 
stays  its  hand  upon  that,  which  constitutes  a  legal  objection 
to  relief." 

15.  He  further  remarks,  upon  the  same  subject:  —  "If  a 
second  equitable  incumbrancer,  without  notice  of  a  prior 
incumbrance,  has  by  his  diligence  acquired  a  better  equity, 
he  will  be  entitled  to  be  first  paid.  A  better  equity  is  thus 
acquired,  when  the  legal  estate  being  outstanding  in  a  trus- 
tee, a  second  incumbrancer  without  notice  of  a  prior  incum- 
brance, takes  a  protection  against  a  subsequent  incumbran- 
cer, which  the  prior  incumbrancer  has  neglected  to  take. 
Thus,  for  example,  a  declaration  of  trust  of  an  outstanding 
term,  accompanied  by  a  delivery  of  the  deeds,  which  create 
and  continue  the  term,  will  give  a  better  equity  than  a  mere 
declaration  of  trust  to  a  prior  incumbrancer.  So,  where  a 
second  equitable  incumbrancer  has  given  notice  to  the  trus- 

1  White  V.  Hillaerc.  3  Y.  &  Coll.  COS.  -J  Gray  v.  Jcnks,  3  Mas.  522. 


268  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

tees,  in  whom  the  legal  estate  is  vested,  he  will  thereby 
acquire  a  priority  over  a  prior  incumbrancer,  who  has  omit- 
ted to  give  such  notice."  ^  *•> 

16.  In  Harrison  v.  Ferth,^  the  purchaser  of  an  estate,  hav- 
ing notice  of  an  incumbrance,  transferred  it  to  one  having 
no  notice.  It  was  held,  reversing  a  decision  of  the  Master 
of  the  Rolls,  that  the  second  purchaser  should  hold,  dis- 
charged of  the  incumbrance.  And  it  is  said  :^  —  "  This  doc- 
trine has  ever  since  been  adhered  to,  as  an  indispensable 
muniment  of  title.  And  it  is  wholly  immaterial,  of  what 
nature  the  equity  is,  whether  it  is  a  lien  or  an  incumbrance 
or  a  trust,  or  any  other  claim.  Indeed,  purchasers  of  this  sort 
are  so  much  favored  in  equity,  that  it  may  be  stated  to  be  a 
doctrine  now  generally  established,  that  a  bond  fide  purchaser 
for  a  valuable  consideration,  without  notice  of  any  defect  in 
his  title  at  the  time  of  his  purchase,  may  lawfully  buy  in  any 
statute,  mortgage,  or  other  incumbrance  upon  the  same  estate, 
for  his  protection.  If  he  can  defend  himself  by  any  of  them 
at  law,  his  adversary  will  have  no  help  in  equity  to  set  these 
incumbrances  aside." 

17.  In  Edmunds  v.  Povey,^  it  was  argued,  that  though  the 
trade  of  buying  in  incumbrances  had  been  formerly  coun- 
tenanced, yet  it  was  in  truth  against  conscience,  and  contra- 
dictory to  many  established  rules  of  law  and  equity.  But 
the  I^ord  Keeper  told  the  counsel  he  wondered  they  laid  their 
shoulders  to  a  point  that  had  been  so  long  since  settled  and 
received  as  the  constant  course  of  chancery;  but  although 
he  would  not  change  the  rule  which  had  so  long  prevailed  in 
that  Court,  yet  it  might  be  he  would  do  so,  when  he  found 
a  man  designing  a  fraud,  and  thinking  to  make  a  trade  of 
cozening  by  the  rules  of  the  Court. 

18.  But  it  is  said,  if  a  firat  mortgagee  takes  the  assign- 
ment as  a  trustee,  he  shall  not  be  allowed  to  tack  the  mort- 
gages ;  for  if  lie  might,  then  a  mere  stranger,  purchasing  the 


1  2  Storv's  Eq.  1035^/.  -^  Story's  E(i.  ■^^  410,  411. 

'^  Tree.  Clia.  Gl;    1  Story's  Eq.  §  410.  *  1  Vcrn.  187. 


CH.  XII.]      ESTATE    OF   THE    MORTGAGEE. TACKING,    ETC.  269 

third  mortgage,  and  declaring  he  had  bought  it  in  ti'ust  for 
the  first  mortgagee,  might  tack  both  together,  and  defeat  all 
the  other  incumbrancers.^ 

19.  No  doctrine  of  the  law  has  been  more  generally  or 
more  severely  condemned  than  that  of  tacking:  Judge  Story 
says:  —  "There  is  certainly  great  apparent  hardship  in  this 
rule  ;  for  it  seems  most  conformable  to  natural  justice,  that 
each  mortgagee  should  in  such  a  case  be  paid  according  to 
the  order  and  priority  of  his  incumbrances.  It  is  assuming 
the  whole  case,  to  say  that  the  right  is  equal  and  the  equity 
is  equal.  The  second  mortgagee  has  a  prior  right,  and  at 
least  an  equal  equity  ;  and  then  the  rule  seems  justly  to 
apply,  that  where  the  equities  are  equal,  that  title  which  is 
prior  in  time  shall  prevail.  It  has  been  significantly  said, 
that  it  is  a  plank  gained  by  the  third  mortgagee  in  a  ship- 
wreck. But,  independently  of  the  inapplicability  of  the 
figure,  which  can  justly  apply  only  to  cases  of  extreme 
hazard  to  life,  and  not  to  mere  seizures  of  property,  it  is 
obvious  that  no  man  can  have  a  right,  in  consequence  of  a 
shipwreck,  to  convert  another  man's  property  to  his  own  use, 
or  to  acquke  an  exclusive  right  against  a  prior  owner.  The 
best  apology  for  the  actual  enforcement  of  the  rule  is,  that  it 
has  been  long  established,  and  that  it  ought  not  now  to  be 
departed  from,  since  it  has  become  a  rule  of  property."  ^  In 
reference  to  the  same  subject  he  remarks,  "  some  of  these 
distinctions  are  extremely  thin,  and  stand  upon  very  artificial 
and  unsatisfactory  reasoning."  ^ 

20.  Chancellor  Kent  says  :*  —  "  There  is  no  natural  equity 
in  tacking,  and  when  it  supersedes  a  prior  incumbrance,  it 
works  manifest  injustice.  By  acquiring  a  still  more  antece- 
dent incumbrance,  the  junior  party  acquires,  by  substitution, 
the  rights  of  the  first  incumbrancer  over  the  purchased  secu- 
rity, and  he  justly  acquires  nothing  more.     The  doctrine  of 


1  Coote,  474;  Barnett  v.  Weston,  12  '■^  1  Story's  Eq.  §  419. 

Ves.  130.  *  4  Conim.  178. 

-  2  Story's  Eq.  §§  413,  414. 

23* 


270  THE   LAW   OF   MOETGAGES.  [CH.  XII. 

tacking  is  founded  on  the  assumption  of  a  principle,  which 
is  not  true  in  point  of  fact ;  for,  as  between  A.,  whose  deed 
is  honestly  acquired,  and  recorded  to-day,  and  B.,  w^hose 
deed  is  with  equal  honesty  acquired,  and  recorded  to-mor- 
row, the  equities  upon  the  estate  are  not  equal.  He  who 
has  been  fairly  prior  in  point  of  time  has  the  better  equity, 
for  he  is  prior  in  point  of  right."  So  Duncan,  J,,  says  :  ^  -^ 
"  There  is  no  natural  equity  in  tacking  debts,  and  where  it 
interferes  with  the  rights  of  others,  it  is  most  unjust." 

21.  Mr.  Coventry  was  of  opinion,^  that  the  English  law  of 
tacking  is  derived  from  the  Civil  Law.  But  Judge  Story 
denies  that  this  principle  was  adopted  in  the  Civil  Law.  He 
says,  the  rule,  qui  prior  est  in  tempore,  &c.,  was  applied,  ex- 
cept in  the  two  cases,  where  the  first  incumbrancer  consented 
to  the  second  pledge,  so  as  to  give  a  priority,  and  where  the 
second  pledge  was  for  money  to  preserve  the  property  ;  and 
that  the  doctrine  referred  to  by  Mr.  Coventry  simply  gave  to 
a  third  mortgagee,  paying  off  a  first  mortgage,  the  same  prior- 
ity, by  way  of  substitution,  which  the  first  mortgagee  had, 
without  changing  his  rights  under  his  own  mortgage.  Judge 
Story  cites  various  passages  from  the  text  of  the  Civil  Law, 
which  lie  supposes  to  have  been  wrongly  interpreted,  as  sus- 
taining the  doctrine  that  he  controverts.  He  comes  to  the 
conclusion,  that  none  of  them  go  further  than  to  authorize  a 
mortgagee  to  tack,  as  against  his  own  debtor,  a  second  loan, 
without  security,  when  the  debtor  seeks  to  redeem.'^ 

22.  Upon  the  same  subject  he  remarks  :*  — "  In  some  cases, 
by  the  Civil  Law,  a  sort  of  tacking  of  debts  could  be  insisted 
on  by  the  mortgagee  against  the  mortgagor ;  but  not  against 
intermediate  incumbrancers."  "  It  is  clear  that  the  Civil  Law, 
in  the  case  of  the  mortgagor  seeking  to  redeem,  did  not  per- 
mit it,  unless  the  mortgagor  paid  not  only  the  debt  for  which 
the  mortgage  was  given,  but  all  other  debts  due  to  the  mort- 
gagee."    But  "  where  there  was  a  first  mortgage,  and  then  a 

1  AiKlcrson  v.  Nuff,  11  S.  &  li.  223.  »  j  Story's  Eq.  §  415,  n. 

-  2  rbw.  454,  n.  *  2  Slor/s  Eq.  1010. 


en.  Xn.]      ESTATE    OF   THE   MORTGAGEE. TACKIXG,    ETC.  271 

second  mortgage,  and  then  the  first  mortgagee  lent  another 
sum  to  the  debtor,  he  could  not  tack  it  against  the  second 
mortgagee.  Mr.  Chancellor  Kent  has  said,  that  in  the  Civil 
Law,  the  mortgagee  was  even  allowed  to  tack  another  incum- 
brance to  his  own,  and  thereby  to  gain  a  preference  over  an 
intermediate  incumbrance.  If,  as  I  presume,  his  meaning  is, 
that  the  tacking  gave  a  preference  over  the  intermediate  in- 
cumbrancer, with  great  deference  I  do  not  find,  that  the  pas- 
sage cited  supports  the  doctrine  ;  and  it  seems  contrary  to 
the  passages  already  cited.  There  are  other  passages  in  the 
code,  on  the  subject  of  a  subsequent  mortgagee  acquiring 
the  rights  of  a  first  mortgagee,  by  paying  his  mortgage,  and 
thereby  confirming  his  own  title  by  substitution.  But  it 
appears  to  me,  that  they  do  no  more  than  subrogate  the 
subsequent  mortgagee  to  all  the  rights  of  the  fiirst  mortgagee, 
and  that  they  do  not  enlarge  those  rights.  Dr.  Brown,  too, 
insists,  that  a  mortgagee  might  tack  another  incumbrance  to 
his  mortgage ;  and  if  he  lent  more  money  by  way  of  a  fur- 
ther charge  on  the*estate,  he  was  in  the  Civil  Law  preferred, 
as  to  this  charge  also,  before  a  mortgage  created  in  the  inter- 
mediate time.  He  cites  the  Dig.  lib.  20,  &c.,  which  does 
not  (as  has  been  already  stated)  seem  to  support  the  conclu- 
sion." 

23.  The  following  decisions  relate  more  especially  to  the 
right  of  tacking,  as  between  the  mortgagee  ami  mortgagor 
themselves  ;  some  of  them  being  cases  of  different  mortgages 
between  the  same  parties,  Avhere  a  part  of  the  securities  were 
defective  ;  and  others,  cases  of  independent  claims,  not  se- 
cured by  mortgage,  in  favor  of  the  mortgagee  against  the 
mortgagor. 

24.  In  Purefoy  v.  Purefoy,^  it  was  stated  by  counsel  as 
clear  law,  and  not  denied  by  the  Court,  that  if  a  biU  was 
brought  to  redeem  two  mortgages,  and  more  money  lent 
upon  one  of  them  than  the  estate  was  Avorth,  the  plaintiff" 
should  not  elect  to  redeem  one,  and  leave  the  heavier  one 

1  1  Vera.  29. 


272  THE   LAW    OF   MORTGAGES.  [CH.  XII. 

unredeemed,  but  should  take  both  or  none.  So,  in  Shuttle- 
worth  V.  Laycock,^  it  is  said  :  — "  If  there  are  two  mortgages, 
and  one  is  defective,  if  the  mortgagor  will  redeem,  he  must 
take  both."  So,  in  Margrave  v.  Le  Hooke,^  a  party  having 
made  two  several  mortgages  of  distinct  estates,  and  died, 
and  his  heir  claiming  one  of  them  as  tenant  in  tail,  and 
filing  a  bill  to  redeem  the  other ;  held,  he  should  redeem 
both  or  neither.  So,  in  Pope  v.  Onslow,"  the  assignee  of  a 
bankrupt  filed  a  bill  to  redeem  a  mortgage  of  a  manor,  made 
by  the  bankrupt.  The  answer  alleged,  that  the  defendant 
first  lent  the  bankrupt  <£200  on  mortgage  of  a  particular  ten- 
ement, and  afterwards  £300  on  the  manor,  which  was  of 
better  value  than  the  money  due,  and  that  the  first  mortgage 
was  deficient  in  value.  Held,  the  plaintiff  could  not  redeem 
one  without  redeeming  both. 

25.  In  Ex  jjccrte  King,*  Lord  Hardwicke  questioned  the 
decision  in  Pope  v.  Onslow,  as  inaccurately  reported.  But 
in  Titley  v.  Davis,''^  the  same  Judge  held,  that  a  purchaser  of 
one  of  two  mortgaged  estates  must  redeem  both  estates, 
even  as  to  the  debt  of  a  second  mortgagee  of  the  other 
estate,  who  liad  filed  a  bill  to  redeem  the  first  mortgage  after 
the  sale. 

26.  In  Roe  ik  Soley,*^  the  assignee  of  a  bankrupt  moved  to 
stay  proceedings,  on  payment  of  principal,  interest,  and  costs, 
due  upon  the  mortgage  in  question  ;  but  it  was  objected, 
that  the  mortgagee  held  two  other  mortgages  of  other  prem- 
ises made  by  the  bankrupt ;  whereupon  the  Court  refused  to 
order  a  redem})tion  upon  the  terms  above  stated,  and  dis- 
charged the  ryle  with  costs. 

27.  In  Demainbray  v.  Metcalf,"  it  is  laid  down,  that  if  a 
sum  of  money  be  secured  by  mortgage,  the  mortgagor 
would  not  be  admitted  to  redeem  after  the  day  of  payment 
was  elapsed,  without  also  paying  all  that  was  due  to  the 
mortgagee  on  notes  or  sim})le  contract.     But  Mr.  Coote  is  of 


1  1  Vci-n.  245.  -  2  Verii.  2n7.  ^  2  A'crn.  28G.  ■•  1  Atk.  300. 

(i  2  Y.  .t  C.  N.  K.  39'J.  •^2  151.  72G.  "  IV.  Ch.  421. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE.  —  TACKIXG,  ETC.     273 

opinion,  that  prior  to  St.  3  &  4  Will.  4,  a  mortgagee  could 
not  have  tacked  a  mere  simple  contract  debt  against  a  mort- 
gagor ;  but  since  the  passing  of  that  statute,  that  a  simple 
contract  debt  may  be  tacked  against  the  heir  or  devisee, 
where  there  is  not  a  devise  for  payment  of  debts.^ 

28.  In  the  case  of  Cator  v.  Charlton,^  Stokes  mortgaged 
to  Charlton  for  £1,400.  Afterwards  Charlton  advanced,  at 
different  times,  several  other  sums,  and  different  premises 
were  added,  and  made  redeemable  on  payment  of  X  1,900 
and  interest.  These  securities  were  registered  ;  and  after- 
wards the  mortgagor  assigned  to  the  plaintiff  the  premises 
first  mortgaged.  The  defendant,  the  mortgagee,  admitted 
that  there  was  no  agreement  that  the  first  premises  should 
be  security  for  more  than  <£1,400  and  interest,  but  claimed 
that  the  plaintiff  could  not  redeem  without  paying  the  whole 
sum  due  ;  and  it  was  decreed  a,ccordingly.  The  same  doc- 
trine was  held  in  the  case  of  Collett  v.  JMunden,  and  Jones  v. 
Smith.-^  And  in  Ireson  v.  Denn,^  the  Master  of  the  Rolls 
said,  he  did  not  know  why  such  a  rule  was  ever  adopted, 
but  it  had  been  in  many  cases ;  and  he  proceeded  to  decree 
accordingly. 

29.  The  rule,  however,  has  been  severely  criticized  and 
somewhat  qualified  in  recent  cases.  Thus,  in  the  case  of 
Hooper,  ex  parte,^  Hopkins  demised  to  Ford  for  years,  by 
indentures  of  mortgage,  subject  to  redemption  on  payment 
of  <£400.  Ford  afterwards  made  further  advances,  and,  by 
an  account  stated,  a  further  sum  of  X400  appeared  to  be 
due  him.  He  died,  and  Hopkins  became  bankrupt.  The 
petition  of  the  executors  of  Ford,  alleging  that  it  was  under- 
stood and  agreed,  that  the  second  sum  of  £400  should  be 
tacked,  and  a  further  mortgage  executed  for  that  sum, 
prayed  a  sale  of  the  premises,  and  an  application  of  the  pro- 
ceeds to  the  payment  of  both  sums.  Lord  Eldon,  after 
remarking  upon  the  general  subject  of  mortgaging  by  a  mere 

1  Coote,  471,  472.  =  ii,_  463.  3  ii,_  459. 

<  2  Cox,  425.  5l9Ves.  477. 


274  THE    LAW    OF   MORTGAGES.  [CE.  XII. 

deposit  of  title-deeds,  proceeds  to  say  :  ^  —  "I  have  more 
doubt  upon  my  own  decision,  the  addition  of  a  second  ad- 
vance ;  but  I  put  that  upon  the  very  ground,  that  the  rede- 
livery of  the  deed  is  an  idle  ceremony,;  if  the  original  de- 
posit is  continued  with  an  agreement  for  a  further  advance, 
that  will  do.  I  speak  with  doubt  upon  this  ;  as  the  practice 
of  conveyancers  has  always  been,  and  the  law  is,  that  an 
original  mortgage,  vesting  the  legal  estate  by  a  contract  in 
writing,  cannot  be  added  to  by  parol.  There  never  was  a 
case,  where  a  man,  having  taken  a  mortgage  by  a  legal  con- 
veyance, was  afterwards  permitted  to  hold  that  estate  as  fur- 
ther charged,  not  by  a  legal  contract,  but  by  inference  from 
the  possession  of  the  deed.  The  other  cases  have  gone  far 
enough,  indeed  too  far ;  and  I  will  not  add  to  their  au- 
thority, where  there  are  circumstances  distinguishing  the 
case  before  me." 

30.  The  defendant  mortgaged  freehold  and  copyhold  es- 
tates, and  certain  drainage  bonds  to  the  plaintiff,  and  by  the 
same  deed  his  daughters  mortgaged  their  freehold  and  copy- 
hold estates,  to  secure  £6,000  lent  by  the  plaintiff  to  the 
defendant,  the  deed  declaring,  that  without  prejudice  to  any 
of  the  rights  or  remedies  of  the  plaintiff,  his  heirs,  &c.,  as 
between  the  defendant,  his  heirs,  &c.,  on  the  one  hand,  and 
the  daughters,  their  heirs,  &c.,  on  the  other,  the  defendant, 
his  heirs,  &c.,  and  his  estates  described  in  the  mortgage, 
should  be  primarily  liable  for  the  £6,000.  Some  years 
afterwards,  the  defendant  mortgaged  the  same  estates  to  the 
plaintiff  to  secure  another  loan.  Held,  the  plaintiff  could 
not,  as  against  the  daughters,  tack  the  second  to  the  first 
mortgage,  but  they  might  redeem  on  payment  of  the 
£6,000.2 

31.  In  White  /;.  Hillacre,^  James  Hillacre  mortgaged 
Madgeon  for  years,  to  Chane,  for  £'300.  In  1808,  by  an 
indenture,  to  which  the  mortgagor  was  party,  the  mortgage 


1  19  Ves.  477  :i.  470,  "  3  Y.  &  Coll.  (Kxc.)  597. 

■-i  Jiuwker  1-.  IJiill,   I    Sim.  (New,)  29. 


CH.-XII.l  ESTATE  OF  THE  MORTGAGEE. TACKING,  ETC.      275 

• 

was  assigned  to  Clark.  The  mortgagor  died,  devising  his 
estate  (subject  to  the  mortgage  and  other  charges,)  to 
Thomas  Hillacre.  Thomas  also  owned  Westhay,  and  in 
1812  mortgaged  it  for  a  term  to  Clitsome,  as  security  for  a 
bond  for  £1,800,  and  died  in  1815,  owning  the  equity  of 
redemption  in  Madgeon  and  Westhay  ;  and  having  devised 
the  estates  to  different  persons.  In  1816,  Clark  assigns  to 
Clitsome  the  Madgeon  mortgage.  Clitsome  having  died, 
the  plaintiff,  her  executor  in  trust,  files  a  bill  in  equity 
against  Henry  Hillacre,  a  devisee  of  Thomas,  his  children 
and  others,  charging  that  the  indentures  of  1808  were  exe- 
cuted with  the  defendant's  approbation,  and  that  Clitsome 
subsequently  held  Madgeon  as  security  both  for  the  balance 
of  the  £1,800  mortgage  due  at  the  time  of  the  sale  of  West- 
hay, and  for  the  £500  debt  secured  by  Madgeon,  and  pray- 
ing for  an  account,  and  that,  in  default  of  payment,  Mad- 
geon might  be  sold,  and  the  proceeds  applied,  first  to  the 
£500  debt,  and  then  to  the  Westhay  mortgage.  Held,  the 
plaintiff  had  not  the  right  of  tacking,  as  the  equity  of  re- 
demption belonged  to  different  persons,  who  became  entitled 
under  the  will  of  Thomas,  before  the  Madgeon  mortgage 
was  assigned  to  Clitsome  ;  and^fcence  the  plaintiff,  the  repre- 
sentative of  Clitsome,  could  not  hold  the  Madgeon  security, 
for  the  balance  of  the  Westhay  debt. 

32.  From  an  examination  of  these  cases,  it  may  be  in- 
ferred that  if  two  or  more  distinct  mortgages  be  made  of 
different  estates  between  the  same  parties,  or  if  money  be 
advanced  on  one  estate,  and  otiiers  afterwards  made  a  secu- 
rity for  such  money  and  for  further  advances,  neither  the 
mortgagor  nor  any  one  claiming  one  of  the  estates  under 
him  can  redeem  one  mortgage  alone.  But  this  rule  applies 
only  where  the  parties  are  the  same,  or  those  claiming  under 
the  same  ;  for  if  two  join  in  a  mortgage  of  one  estate,  and 
afterwards  one  of  them  mortgage  another  estate  to  the  same 
mortgagee  for  a  different  sum,  still  the  other  and  those 
claiming  under   him   may  redeem  the   former   without    the 


276  THE   LAW   OF   MORTGAGES.  [CH.  KJI. 

latter.  So,  if  the  owners  of  two  separate  estates  join  in  a 
mortgage  of  both  estates,  and  one  afterwards  mortgages  the 
former  to  the  same  party  for  a  different  sum,  the  other  may 
redeem  on  payment  of  the  first  mortgage  debt. 

33.  As  the  result  of  the  cases,  Judge  Story  states  the  law 
to  be,  that  "  Where  a  mortgagee  has  two  mortgages  on  dif- 
ferent estates,  separately  mortgaged  to  him  by  the  mortga- 
gor, and  one  of  them  is  a  deficient  security  for  the  debt,  and 
the  other  is  more  than  sufficient,  the  mortgagor  and  his  heks 
Avill  not  be  permitted  to  redeem  one,  without  redeeming  the 
other.  And  if  the  equity  of  redemption  of  one  of  the  estates 
be  sold,  the  purchaser  will  not  be  permitted  to  redeem  that 
estate  (if  the  mortgage  has  become  absolute  at  law,)  without 
redeeming  both  mortgages.  The  ground  of  this  doctrine  is, 
that  he  who  seeks  equity  must  do  equity  ;  and  a  court  of 
equity  will  not  assist  any  person  in  depriving  a  mortgagee 
of  any  security  which  he  would  have  against  the  mortga- 
gor.." ' 

34.  With  regard  to  the  right  of  bringing  independent 
accounts  between  the  parties  into  the  redemption  of  a  mort- 
gage, it  is  said,  that  if  the  right  to  the  equity  of  redemption 
is  in  dispute,  a  tender  will  i^  stop  the  interest.  If  there  is 
an  open  account  between  the  parties,  and  a  balance  due  the 
mortgagor ;  a  tender  of  the  sum  due,  after  deducting  suqh 
balance,  will  not  stop  the  interest  or  prevent  the  mortgagee's 
recovering  costs.'^ 

35.  From  what  has  been  already  stated,  it  may  be  inferred 
as  a  general  principle,  that  tacking  is  not  allowed,  except  in 
favor  of  a  bond  fide  purchaser,  without  notice  of  the  prior 
incumbrance,  when  he  took  his  original  security.  Hence  the 
doctrine  of  tacking  is  not  to  be  regarded  as  a  rule  of  Amer- 
ican law,  as  against  mesne  incumbrances  du/i/  reg-istered ; 
because  the  registry  acts  are  held  not  only  to  be  constructive 
notice,  but  tlie  acts  themselves,  in  cU'ect,  declare  the  priority 

1  btory'.s  E<[.  §  1U2.'5,  n.  ^  Cootc,  513,  514. 


CII.  XII.]   ESTATE  OF  THE  MORTGAGEE. TACKING,  ETC.     277 

to  be  fixed  by  the  registration.^  It  is  said  :  —  "  The  doctrine 
of  tacking  is  not  admissible  in  our  courts,  it  being  inconsistent 
with  the  statute  providing  for  the  registry  of  deeds,  which 
establishes  a  different  principle  of  priority,  and  also  the  stat- 
ute which  prescribes  the  terms  on  which  the  mortgagor  is 
entitled  to  redeem."  ~ 

36.  Even  as  between  the  parties  themselves,  the  doctrine 
of  extending  the  lien  of  a  mortgage  to  other  claims  than 
those  expressly  agreed  to  be  thus  secured,  or  of  imposing 
upon  the  mortgagor,  as  a  condition  of  redemption,  the  pay- 
ment of  all  debts  due  from  him  to  the  mortgagee  ;  has  been 
held  not  to  prevail  in  the  United  States.  More  especially  is 
this  the  case  in  a  court  of  law,  and  where  a  legal  process  is 
brought  to  enforce  the  mortgage."  (d) 

1  1  Storv's  Eq.  §  421,  n. ;  1  Hill,  R.  P.  Err.  112  ;  Bank,  &c.  v.  Finch,  3  Barb. 

400.    SceSiterj;.McClanachan,2GriUt.  Cli.  298. 

280;   Brown   v.   Wright,  4  Yerg.   G6  ;  -Per  Wilde,  J.,  Peabody  v.  Patten, 

Grant   v.   Bissett,   1    Gaines's    Gas.   in  2  Pick.  520. 


(d)  The  doctrine  of  tacking  is  said  to  have  been  first  attacked  and  ex- 
ploded in  the  case  of  Grant  v.  The  U.  S.  Bank,  (1  Gaines's  Gas.  in  Err.  112,) 
in  which  General  Hamilton  made  a  celebi-ated  argument  against  it.  It  ap- 
pears to  have  been  recognized  in  the  case  of  Robertson  v.  Campbell,  2  Call, 
(Vir.)  362.     But  see  Colquhoun  v.  Atkinson,  6  Munf.  5o0.  ' 

Mortgage  to  secure  a  money  bond.  To  a  suit  for  foreclosure,  the  defend- 
ants answered,  that  the  bond  and  mortgage  were  made,  to  secure  judgments 
in  favor  of  third  persons  against  the  mortgagor,  assigned  to  the  mortgagee, 
■which  had  since  been  satisfied  by  execution  sales  of  other  property  of  the 
mortgagor.  Proofs  were  taken  in  support  of  the  defence,  and  the  plaintiff 
then  offered  evidence  of  payments  made  by  him  for  the  mortgagor  since  the 
date  of  the  bond  and  mortgage,  and  other  judgments  against  the  mortgagor, 
since  assigned  to  the  mortgagee.  Held,  under  the  pleadings,  the  plaintiff 
could  not  have  a  decree  for  a  sale  to  raise  the  latter  sums.  Hopper  c.  Sisco, 
1  Halst.  Ch.  343.  Two  mortgages,  and  a  subsequent  judgment  against  the 
mortgagor  in  favor  of  the  first  mortgagee,  who  purchased  the  equity  of 
redemption  at  a  sale  under  the  judgment,  and  brings  a  bill  against.the  second 
mortgagee  to  foreclose.  Held,  he  could  not  require  payment  of  the  judgment. 
M'Kinstry  v.  Mervin,  3  Johns.  Ch.  4G6;  ace.  Burnett  v.  Dennison,  5,  35; 
Tanner  i'.  Wells,  8  Ham.  13G. 
VOL.   I.  24 


278  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

37.  In  Darrow  v.  Kelly ,i  the  mortgagor  became  indebted 
to  an  assignee  of  the  mortgage,  on  other  accounts  than  the 
mortgage  debt.  In  a  scire  facias  upon  the  mortgage,  it  was 
contended  for  the  plaintiif,  that  the  mortgage  should  stand 
as  security  for  the  mortgagor's  whole  indebtedness  to  him ; 
but  the  Court  (Shippen,  President)  held,  that  being  a  court 
of  law,  they  could  not  assume  chancery  powers ;  that  they 
had  no  authority  to  foreclose  the  equity  of  redemption,  or  to 
impose  terms  upon  a  mortgagor  applying  to  redeem  ;  but 
must  be  strictly  governed  by  the  act  of  the  legislature  which 
established  this  remedy.  "  This  act  expressly  confines  the 
remedy  of  the  mortgagee  to  the  recovery  of  the  principal  and 
interest  due  on  the  mortgage ;  and  the  proceedings  under  the 
law  show  the  uniform  construction  of  it.  The  scire  facias 
is  to  show  cause  w^hy  the  land  should  not  be  ^old  for  pay- 
ment of  the  principal  and  interest  due  on  the  mortgage.  When 
judgment  is  obtained,  the  levari  facias  is  to  levy  the  principal 
and  interest  money  only.  There  is  no  penalty,  no  judgment 
for  a  penalty,  and  we  might  as  well  refuse  to  stay  proceed- 
ings in  a  suit  on  a  single  bill,  till  a  subsequent  debt  was  dis- 
charged, as  in  this  case  of  a  mortgage."  ^ 

38.  It  has  been  held  in  Massachusetts,  that  a  subsequent 
mortgagee,  upon  a  bill  in  equity,  shall  be  allowed  to  redeem 
a  prior  mortgage,  by  paying  the  sum  due  thereon,  though 
the  defendant  has  another  claim  upon  the  property,  subject 
to  the  plaintiff's  mortgage ;  unless  the  defendant  files  a  cross- 
bill to  redeem  the  subsequent  mortgage.^  The  Court  re- 
mark :^  —  "  The  defendants'  title  under  the  mortgages  made 
prior  to  the  plaintiff's  mortgage,  and  their  title  to  the  equity 
under  Congdon  by  a  conveyance  from  him  subsequent  to 
the  plaintiff's  mortgage,  cannot  merge  so  as  to  defeat  the 
plaintiff's  tille." 

39.  Upon  the  same  principle,  and  for  a  stronger  reason, 
any  payment  made  uj)oii  Ww  mortgage  cannot  be  applied  by 
the  mortgagee  to  other  claims. 

1  Divll.  142.  "  Orecn  v.  Tanner,  8  Met.  411. 

2  Ibid.  145.  ••  Ibid.  p.  423. 


CH.  Xn.]      ESTATE    OF    THE    MORTGAGEE. TACKING,   ETC.  279 

40.  In  the  case  of  Hicks  v.  Bingham,^  Pepooii  mortgaged 
the  demanded  premises,  with  another  tract,  to  the  defendant, 
to  secure  five  notes ;  and  the  equity  of  redemption  came  into 
the  hands  of  the  plaintiff.  Pepoon  afterwards  assigned  the 
other  tract  to  Willard,  and  the  defendant  subsequently  re- 
leased it  to  Willard,  and  immediately  afterwards  entered 
upon  the  demanded  premises  for  breach  of  condition,  and  had 
remained  in  possession  ever  since.  The  plaintiff  afterwards 
paid  to  the  defendant  certain  sums  of  money,  which,  with 
the  amount  paid  by  Willard  and  the  rents  of  the  estates, 
were  alleged  to  cover  the  mortgage  debt.  Upon  a  bill  in 
equity  to  redeem,  the  question  was,  whether  the  defendant 
was  bound  to  apply  the  sum  paid  by  Willard  to  the  mort- 
gage debt,  or  had  a  right  to  apply  it  to  other  claims  against 
Pepoon.  It  was  held,  that  it  must  be  applied  to  the  mortgage, 
having  been  received  in  consequence  of  the  mortgage,  and 
for  a  release  of  a  part  of  the  mortgaged  premises. 

40  a.  In  Loring  v.  Cooke,^  the  plaintiff  brought  a  biU  to 
redeem  an  equity  of  redemption  sold  on  execution  ;  and 
the  defendant  in  his  answer  stated,  that  the  plaintiff  owed 
him  other  sums  of  money,  that  he  was  insolvent,  and  that 
the  defendant  purchased  the  equity  merely  that  he  might 
obtain  satisfaction  of  some  of  those  debts,  and  submitted  that 
the  Court  would  not  decree  a  reconveyance  without  payment 
of  the  balance  due  him.  W^ilde,  J.,  says  :  —  "It  is  very  clear 
that  the  plaintiff  is  entitled  to  redeem  on  the  repayment 
of  the  purchase-money  and  the  interest.  The  right  is  ex- 
pressly given  by  statute,  and  cannot  be  charged  with  other 
independent  demands,  according  to  the  doctrine  of  tacking 
as  adopted  by  the  English  courts  of  equity." 

40  b.  A  person  borrowed  money,  and  secured  his  indorsers 
by  a  deed  of  trust.  He  afterwards  borrowed  money  with 
the  same  indorsers,  applied  it  in  part  payment  of  the  for- 
mer debt,  and  died.  Held,  the  dower  of  the  widow  was 
chargeable  with  the  unpaid  balance  in  the  deed  of  trust. 

Ml  Mass.  300.  -  3  Pick.  48. 


280  THE   LAW    OF   MORTGAGES.  [CH,  XII. 

but  the  indorsers  could  not  tack  to  the  deed  the  subsequent 
debt.i 

40  c.  Mortgage  to  A.  from  B.,  dated  in  1795.  C.  became 
assignee  of  a  lien  on  the  land,  created  by  B.  in  1802.  Sub- 
sequently, A.  obtained  a  decree  for  an  alleged  balance  due 
on  his  mortgage.  C.  obtained  an  injunction  against  the 
decree,  alleging  that  the  debt  was  wholly  or  nearly  paid,  in 
answer  to  which  A.  relied  on  other  advances  made  on  the 
faith  of  the  mortgage.  Held,  such  advances  upon  simple 
contract  on  land  could  not  be  tacked  to  the  prejudice  of  C.^ 

40  d.  In  Illinois,  a  subsequent  mortgagee  has  priority  of 
advances  made  by  the  former  mortgagee,  having  notice  of 
the  second  mortgage.'^ 

41.  So,  in  Vermont,  it  is  held,  that  where  the  assignee  of  a 
mortgage  which  has  become  due,  brings  an  action  upon  it, 
and  holds  another  one  which  was  not  due  at  the  commence- 
ment of  suit ;  the  mortgagee  may  redeem  upon  payment  of 
the  former.* 

42.  In  some  of  the  States,  however,  the  doctrine  of  the 
English  law  seems  to  have  been  adopted  or  recognized. 
Thus  in  Connecticut,  in  the  case  of  Scripture  v.  Johnson,^ 
the  plaintiff  mortgaged  to  secure  a  note  for  fifty  dollars. 
The  note  and  mortgage  were  assigned,  and  the  assignee 
brought  ejectment  against  the  plaintiff,  recovered  judgment, 
and  took  possession  under  an  execution.  The  plaintiff  was 
also  indebted  to  another  person  by  bond,  who  brought  a  suit 
upon  it,  and  recovered  judgment  and  execution,  and  assigned 
the  execution  to  the  assignee  of  the  mortgage.  The  assignee 
levied  the  execution  upon  the  mortgaged  premises  by  ap- 
praisement in  tlie  name  of  the  original  obligee,  who  trans- 
ferred the  title  to  the  assignee.  The  plaintiff  brings  a  bill  to 
redeem  the  mortgage.  The  Court  say:'^  —  "There  is  no 
doubt  as  to  the  right  of  the  plaintiff  to  redeem  the  whole  of 


1  Grccr  v.  Cijcstcr,  7  Ilimipli.  77.  '*  Lanison  v.  Sutherland,! .'5  Verm. 309. 

-  llu;:lie.s  v.  Worlcy,  \Vi\,\).  noo.     JJiit  '''  .'5  C"oiiii.  1211. 

SCO  l^owiiin;;  v.  riilinateer,  I  Moiir.  G4.  "  Ibid.  21.3. 
"  Fryc  V.  Uaiik,  &c.,  11  111.  3(37. 


CII.  XII.]      ESTATE    OF    THE    MORTGAGEE. TACKING,    ETC.  281 

the  premises  mortgaged ;  but  as  he  who  will  have  equity- 
must  do  equity,  it  must  be  on  condition  not  only  of  paying 
the  sum  charged  upon  the  land,,  but  the  debt  collaterally  due 
to  the  mortgagee." 

43.  So  it  has  been  said  by  the  same  Court :  —  "  Whenever 
he  (the  mortgagor)  brings  a  bill  to  redeem,  the  rule,  that  he 
who  seeks  equity  must  first  do  equity,  will  be  applied.  And 
hence  it  is,  that  if  the  mortgagor  owe  a  collateral  debt  to  the 
mortgagee,  he  will  not  be  entitled  to  redeem,  without  paying 
such  debt,  as  well  as  that  secured  by  the  mortgage."  ^ 

44.  And  in  the  same  case  ^  it  was  held,  in  analogy  to  the 
doctrine  of  tacking,  and  upon  the  general  principle,  that 
he  who  seeks  equity  must  first  do  equity ;  that  an  execution 
creditor  of  the  mortgagor  should  not  be  allowed  to  redeem, 
where  his  claim  was  founded  upon  the  accidental  omission 
of  the  word  heirs,  in  a  trust  conveyance  from  the  mortgagor, 
and  the  consequent  alleged  transfer  of  only  a  life  estate  in- 
stead of  a  fee  by  such  deed. 

45.  So,  in  a  late  case,  it  is  held,  that  a  mortgagee  may  take 
another  mortgage,  which  will  be  valid  against  an  intervening 
incumbrance  implied  by  equity,  of  which  he  had  neither 
actual  nor  implied  notice ;  like  that  of  a  surety  in  the  note 
secured  by  the  first  mortgage,  where  the  note  is  in  form  a 
joint  and  several  one.^ 

46.  In  Maryland  it  is  held,  that,  "if  a  mortgagor  goes 
into  chancery  to  redeem,  upon  the  axiom^  of  equity  above 
mentioned,"  (that  he  who  seeks  equity  must  do  equity,  and 
a  multiplication  or  circuity  of  action  should  be  avoided,)  "  he 
will  not  be  permitted  to  do  so,  but  upon  payment  not  only 
of  the  mortgage  debt,  but  of  all  other  debts  due  from  him  to 
the  mortgagee.  But  if  the  mortgagee  seek  a  foreclosure  in 
chancery,  the  mortgagor  will  be  permitted  to  redeem  upon 
payment  of  the  mortgage  debt  only,  no  matter  to  what 
amount,  on  other  accounts,  he  may  stand  indebted  to  the 

1  Chamberlain  r.  Tliompson,  10  Conn.  ^  Orvis  v.  Newell,  17  Conn.  97.  But 
251.  see  Osboni  v.  Carr,  12  Conn.  195. 

-  10  Conn.  251. 

24* 


282  THE   LAW   OF   MORTGAGES.  [CH.    XII. 

mortgagee.  And  if  a  subsequent  mortgagee  or  judgment 
creditor  file  a  bill  to  redeem,  he  will  be  permitted  to  do  so 
upon  the  payment  of  the  m.ortgage  debt  alone,"  ^ 

47.  In  Coombs  v.  Jordan,^  Bland,  Chancellor,  says:  — 
"  Where  a  mortgagee  has  made  further  advances  to  the 
mortgagor,  and  taken  his  bond,  binding  himself  and  his 
heirs  to  secure  payment,  the  mortgagee  may  tack  such  bond 
debt  to  his  mortgage  as  against  the  heir  or  devisee  of  the 
mortgagor,  who  shall  not  be  allowed  to  redeem  without  pay- 
ing the  bond  as  well  as  the  mortgage  debt.  This,  however, 
is  solely  a  matter  of  arrangement  to  prevent  circuity  of  suits ; 
for,  in  natural  justice,  the  claim  has  no  foundation.  But  this 
tacking  of  the  bond  debt  to  the  mortgage  is  never  allowed, 
in  any  case,  to  the  prejudice  of  creditors,  whose  claims  as  to 
the  bond  debt,  are  of  equal  degree."  (e) 

47  a.  So,  in  Virginia,  a  married  woman  having,  under  a 
power  in  a  marriage  settlement,  given  a  m.ortgage  on  her 
separate  estate,  to  secure  a  debt  which  she  had  contracted, 
afterwards  obtained  a  further  loan  from  the  mortgagee. 
Upon  a  bill  filed  by  her  trustee  to  redeem,  held,  she  must 
pay  the  latter  debt  if  the  interest  of  third  persons  was  not 
affected.^ 

47  h.  So,  in  Ohio,  purchased  lands,  sold  under  a  decree  to 
satisfy  a  mortgage,  for  a  sum  exceeding  the  amount  decreed. 
Held,  he  might  apply  the  surplus  in  his  hands  to  the  redemp- 
tion of  an  elder  niortgage.^ 

47  c.  So,  in  South  Carolina,  where  a  mortgagor  comes  into 
equity  to  redeem,  and  the  mortgage  would  not  be  treated  as 
such  at  law  ;  he  must  pay  all  that  is  due  the  mortgagee,  on 
any  account,  in  order  to  redeem.'' 

1  Per  Dorscv,  J.     Lee  i".  Stone,  5  G.        '^  Woodson  v.  I'erkins,  5  Gratt.  345. 

6  Johns.  21-22;  Chase  v.  M'Donald,         *  Cowlcs  v.  Ra-riict,  14  Ohio.  .38. 

7  liar.  &J.,  IGO.  '^  Walling  i-.  Aikin,  1  McMul.  Ch.  1. 
-  3  Bland,  330. 


(c)  A  statute  of  this  State  provides,  that  a  mortgage  is  valid  only  for  what 
appears  upon  the  face  of  it.     Md.  L.  825. 


CH.  XII.]      ESTATE   OF   THE   MORTOAGEE. TACKIXG,   ETC.  283 

47  d.  So,  in  Kentucky,  in  order  to  redeem,  it  is  held  that 
the  mortgagor  must  pay  all  equitable  as  well  as  legal  claims 
against  him,  and  must,  therefore,  pay  subsequent  advances 
made  by  the  mortgagee.^ 

48.  Upon  this  subject,  Mr.  Greenleaf  makes  the  following 
remarks  :  —       • 

49.  "  The  doctrine  of  tacking,  though  now  established  in 
England,  is  there  taken  wdth  this  most  important  qualifica- 
tion, that  the  party  who  seeks  to  avail  himself  of  it  is  a  bond 
fide  purchaser,  without  notice  of  the  prior  incumbrance,  at  the 
time  when  he  took  his  original  security  ;  for  if  he  then  had 
such  notice,  he  has  not  the  slightest  claim  to  the  protection 
or  assistance  of  a  court  of  equity."  ^ 

50.  He  proceeds  further  to  remark  as  follows,  with  more 
particular  reference  to  the  application  of  the  doctrine  of  tack- 
ing in  the  case  of  heirs,  who,  by  the  EngKsh  law,  are  directly 
bound  by  the  bond  debts  of  the  ancestor  :  — 

51.  "  In  the  settlement  of  estates,  it  is  a  cardinal  rule  of 
American  law,  that  all  the  property  of  the  deceased  is  charged 
as  a  trust  fund  for  the  payment  of  his  debts.  The  personalty 
is  first  to  be  exhausted,  after  which  the  executor,  on  applica- 
tion to  the  proper  court,  obtains  ficense  to  sell  all  or  so  much 
of  the  real  estate  as  may  be  necessary  to  pay  the  remaining 
debts ;  the  proceedings  being  regulated  by  statutes.  Ordi- 
narily, therefore,  remedy  can  be  had  in  the  first  instance,  only 
against  the  executor  or  administrator ;  the  heir  being  liable 
only  in  regard  to  those  debts,  for  which  no  action  could  have 
been  had  against  the  personal  representatives  within  the 
period  mentioned  in  the  statutes  limiting  such  actions. 
Royce  r.  BurneH,  12  Mass.  395  ;  Webber  v.  Webber,  7  Greenl. 
127.  The  land  descends  to  the  heir,  upon  the  death  of  the 
ancestor ;  his  title  being  liable  to  be  divested  by  a  sale  by 
the  executor  or  administrator,  as  above  stated.  Gibson  r. 
Farley,  16  Mass.  280.     If  he  should  apply  to  redeem  a  mort- 

1  Reed  v.  Lan-^dalc,  Hardin,  6  ;  Ogle  -  2  Greenl.  Cruise,  141,  n. 

V.  Ship,  1   A.  K.  :Mar.  287 ;  Nelson  v. 
Boyce,  7  J.  J.  :Mar.  401. 


284  THE   LAW   OF   MORTGAGES.  [CII.  XII. 

gage  of  his  ancestor,  in  those  States  in  which  statute  pro- 
visions exist,  entitling  the  mortgagor  to  redeem  on  payment 
of  the  mortgage-money,  it  is  conceived  that  the  doctrine  in 
the  text  (to  wit,  that  the  heir  of  the  mortgagor  cannot  redeem 
a  mortgage  made  by  the  ancestor,  without  paying  off  the 
money  due  upon  a  bond,  for  another  debt)  could  not  be  ap- 
plied to  his  case.  But  in  all  other  cases,  where  the  redemp- 
tion of  the  land  would  immediately  constitute  it  assets  in  the 
hands  of  the  heir,  in  respect  to  Vi^hich  he  would  be  liable  to 
the  same  creditor  on  the  obligation  of  his  ancestor,  the  prin- 
ciple in  the  text,  of  avoiding  circuity  of  action,  would  doubt- 
less be  applied  by  a  court  of  equity  here,  as  in  England."  ^ 

52.  The  same  writer  further  remarks :  —  "  In  all  the  cases 
on  the  subject  of  tacking,  it  is  to  be  observed,  that  there  is  a 
broad  distinction  taken  between  a  bill  to  redeem  and  a  bill 
to  foreclose  a  mortgage.  In  the  former  case,  redemption 
being  asked  for  on  equitable  grounds  alone,  the  rule,  that  he 
who  would  have  equity  must  do  equity,  applies,  and  tacking 
is  allowed.  But  in  a  bill  to  foreclose  a  mortgage,  the  cred- 
itor applies  on  the  ground  of  the  mortgage  debt  alone."  ^ 

53.  Somewhat  analogous  to  the  practice  of  tacking,  is  the 
right  of  a  mortgagee  to  hold  his  mortgage  as  security  for 
advances  or  liabilities,  made  or  incurred  subsequently  to  the 
date  of  the  mortgage,  but  by  virtue  of  an  express  provision 
contained  therein,  or  an  express  agreement  concurrent  there- 
with. It  is  this  last  circumstance,  which  constitutes  the 
fundamental  distinction  between  these  two  rights  and  privi- 
leges of  a  mortgagee ;  tacking  being  wholly  founded  in  a 
construction  of  equity,  while  the  right  to  hold  land  mortgaged 
as  security  for  future  demands,  rests  entirely  upon  the  agree- 
ment of  the  parties.  (/)     The  general  principle  is  said  to  be, 

1  2  Grccnl.  Cruise,  142,  n.  1  ;  Elvy  v.  "  2  Grcenl.  Cruise,  147,  n.  1. 

Korwood,  11  Eng.  Law  &  Eq.  224. 


{/)  Sec  Chase  v.  M'Donald,  7  liar.  &  J.  IGO. 


en.  XII.]  ESTATE  OF  THE  MORTGAGEE. TACKIXG,  ETC.    285 

that  subsequent  advances  cannot  be  tacked  to  a  junior  mort- 
gage, to  the  prejudice  of  a  bond  fide  junior  incumbrancer ; 
but  a  mortgage  is  always  good  to  secure  future  loans,  where 
there  is  no  intervening  equity.  In  other  \vord.s,  where  a  mort- 
gage is  expressly  made  to  cover  future  debts,  those  debts  will 
be  secured  by  it,  in  preference  to  the  claim  of  a  third  person, 
who  takes  another  mortgage  between  the  making  of  the  first 
and  the  incurring  of  the  proposed  future  debts,  with  notice, 
express  or  implied,  of  the  first  mortgage.  But  a  mortgage 
cannot  be  enlarged  by  tacking  subsequent  advances  to  it  in 
virtue  of  a  parol  agreement ;  nor,  it  seems,  under  a  written 
contract,  unless  the  subsequent  mortgagee  has  fuU  notice  of 

it.'  (^) 

54.  The  question,  of  the  validity  of  a  mortgage  to  cover 
future  advances  or  liabilities,  may  arise  under  several  differ- 
ent aspects.  One  inquiry  is,  what  language  in  the  deed 
itself,  or  what  evidence,  independent  of  the  deed,  is  necessary 
and  sufficient  to  create  such  a  security.  There  is  also  a 
manifest  distinction,  between  the  principle  of  making  a  mort- 
gage to  be  a  security  for  subsequent  debts,  as  between  the 
parties  themselves,  and  that  of  giving  it  the  same  extended 
operation  as  against  third  persons,  holding  other  liens  upon 
the  estate.  So  also  the  question  arises,  in  connection  with 
such  adverse  claims,  how  far  the  subsequent  incumbrancers 
are   bound   by   the   notice    arising   from   registration ;    and 

1  4  Kent,  175  ;  1  Hillianl,  R.  V.  401  ;  Crowell,  11    N.  H.   251 ;  McDanicls  v. 

Watson  V.  Dickens,  12   Sm.  &  M.  G()8  ;  Colvin,  16  Verm.  300  ;  James  ?-.  Moi-ey, 

Craigv.Tappin,  2  Sandf.  Ch.  78  ;  Quin-  2    Cow.    240;    Beekman   v.    Frost,    18 

ebauf,',  &c.  v.   French,  17   Conn.  129;  Johns.  544 ;  Van  Wagner  i-.  Van  Wag- 

Cootc,  441  :  Clark  r.  Bull,  2  Root,  .329;  nor,  3  Halst.   Ch.  27:  Mobile,    &c.    v. 

Torrey  ?;.  Bank,  &c.  9  Paige,  G49  ;  U.  Talman,    15    Ala.    472;    Whiting    r. 

States  V.  Hooe,  3  Cranch,  73  ;  North  v.  Beebe,  7  Eng.  421. 


{cj)  Chancellor  Kent  says,  (4  Comni.  13G,  n.  «,)  "  In  tlie  Roman  law,  the 
mortgage  could  be  held  as  a  security  for  further  advances.  The  mortgagee 
was  allowed  to  tack  subsequent  debts,  in  the  ease  of  the  mortgagor  seeking 
redemption,  though  this  was  not  permitted  to  the  extent  of  impairing  the 
rights  of  intermediate  incumbrancers." 


286  THE   LAW   OF   MORTGAGES.  [CH,  XII. 

whether  the  first  mortgagee  shall  hold  for  advances  made 
after  the  making  and  recording  of  the  second  mortgage. 
Most  of  the  cases  upon  this  subject  have  turned  upon  the 
conflicting  rights  of  mortgagees  claiming  under  such  a  mort- 
gage, on  the  one  hand,  and  general  creditors  of  the  mortga- 
gor, alleging  that  the  conveyance  was  per  se  invalid  or 
fraudulent,  or  subsequent  mortgagees  of  the  same  property, 
on  the  other. 

55.  Upon  this  subject,  the  general  doctrine  has  been  stated 
by  eminent  Judges,  as  follows  :  — 

56.  "  The  giving  collateral  security,  to  indemnify  against 
liabilities  to  be  incurred  thereafter,  is  liable  to  some  suspicion 
on  the  ground  of  fraud ;  but  there  is  no  objection  to  such  a 
transaction,  if  it  be  explained  and  proved  to  be  fair."  ^ 

57.  "  A  mortgage  made  bond  fide  for  the  purpose  of  secur- 
ing future  debts,  expected  to  be  contracted,  in  the  course  of 
dealings  between  the  parties,  is  a  good  and  valid  security."  ^ 

58.  "  In  many  cases,  a  subject  pledged  for  a  debt  may  be 
considered  as  a  security  for  further  loans.  I  see  no  possible 
objection  to  it,  if  no  intervening  right  exists,  to  prevent  the 
justness  of  the  application  of  the  rule,  and  the  plaintilT  has  no 
such  intervening  equity.  It  was  a  rule  of  the  civil  law,  as 
was  well  shown  by  the  Supreme  Court  of  Massachusetts,  in 
Jarvis  v.  Rogers,  (15  Mass.  389,)  that  if  the  debtor  pledged 
property  to  secure  a  debt,  and  afterwards  another  debt  was 
contracted,  the  creditor  might  retain  for  both  debts,  provided 
there  was  nothing  to  negative  the  presumption  of  an  implied 
contract,  that  the  pledge  should  be  so  applied.  In  the  present 
case,  the  deed  being  absolute  in  its  terms,  and  the  defeasance 
by  agreement  resting  in  parol,  the  application  of  the  deed,  as 
a  security  for  future  responsibilities,  of  whatever  kind, 
becomes  more  easy  and  flexible  ;  and,  as  between  parties,  it 

'  Per  Putnam,  J..  Gardners.  W(M)l)cr,  Pet.    448;  2     Cow.    24r);    Joll^^:on    v. 

17  Pick.  414;  See  Atkitisoii  v.  JMaliiifr,  Bourne,  2  Y.  &  Coll.  2(58 ;  Lyle  »•.  Du- 

2  T.  11.  462  ;  Edmonds  r.  Crenshaw,  1  conili,  5  Binn.  585;  Bootli   i\  Barnum, 

McC.  CI).  265  ;    Hendricks  /•.  Koliinson,  9  Conn.  280. 

2  Jolins.  Clia.  283  ;  U.  States  r.  llooe,  3  -  Per  Wilde,  ,1.,   Conunerciul,  &c.  v. 

Crancli,  73  :  Conard  ?>.  Atlantic,  v<:e.   1  Cunnin;;,'lnim,  24  Pick.  274. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE. — TACKIXG,  ETC.    287 

is  perfectly  plain  that  it  ought  to  be  so  held.  It  is  only  when 
the  rights  of  third  persons  are  prejudiced  by  want  of  notice, 
&c.,  that  the  extension  of  the  security  is  prevented."  ^(h) 

59.  In  the  case  of  Bank,  &c.  v.  Finch,^  Whittlesey,  V.  C, 
says :  —  "A  mortgage  may  unquestionably  be  taken  and 
held  as  a  security  for  future  advances  and  responsibilities ; 
but  it  is  contended  that  (the  principle)  is  only  applicable 
when  the  mortgage  upon  its  face  provides  for  security  for 
future  advances  and  responsibilities.  This  mortgage  is 
taken  to  secure  $30,000,  stated  therein  to  have  been  paid  by 
the  mortgagee  to  the  mortgagor ;  and  it  is  recorded  for  that 
sum,  which  is  all  that  the  record  expresses.  If  there  had 
been  no  money  actually  paid,  would  the  mortgagor  be  pro- 
hibited by  his  signature  to  the  instrument  from  showing 
that  fact  by  parol  ?  If  the  mortgagee  had  not  advanced  the 
money  until  three  months  after  the  execution  of  the  mort- 
gage, would  he  be  prohibited  from  showing  this  fact  by 
parol  ?     The  parol  evidence  was  admissible,  not  for  the  pm-- 

iPer    Kent,    Cliancellor,    James    r.  -  3  Barb.  Clia.  297,  298. 

Johnson,  6  Johns.  Cha.  429. 


(//)  In  Shepard  v.  Shepard,  G  Conn.  41,  the  restriction  upon  the  right  to 
hold  property  mortgaged,  as  secnrity  for  future  advances,  ■was  thus  ex- 
pressed :  —  "  No  creditor,  on  inspecting  the  record,  can  know  wliether  there 
is  any  lien  on  the  premises,  except  eight  hundred  dollars,  nor  be  furnished 
■with  any  means  of  information  on  the  subject."  There  is  peculiar  ground 
for  suspicion,  where  the  mortgage  is  really  made  to  secure  future  advances, 
but  does  not  purport  to  be  given  for  that  purpose.  In  such  case,  strict 
proof  of  consideration  will  be  required.  Craig  r.  Tappin,  2  Saudf.  Cha.  78. 
In  the  same  case,  such  a  mortgage  was  held  to  be  effectual  for  the  amount 
advanced  prior  to  the  second  mortgage,  though  the  first  mortgagee  knew  of 
the  mortgagor's  intention  to  make  the  second  mortgage,  to  secure  a  pre- 
existing debt;  but  not  for  advances  made  subsequent  to  the  second  mort- 
gage. It  is  held  in  Illinois,  that  a  mortgage,  taken  to  secure  future  advances, 
is  valid,  although  it  does  not  show  upon  its  face  the  real  character  of  the 
transaction.  In  such  a  case,  the  mortgagee  can  only  recover  the  amount 
actually  due  at  the  date  of  the  sale  of  the  equity  of  redemption.  Collins  v. 
Carlllc,  13  111.  254. 


288  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

pose  of  explaining  the  written  instrument,  but  for  the  purpose 
of  establishing  the  fact,  that  credit  had  been  given  to  Finch, 
upon  the  several  discounts  for  him  on  the  faith  of  the  mort- 
gage. Here  is  a  mortgage,  the  record  of  which  is  notice  to 
all  of  an  incumbrance  to  the  extent  of  ^30,000.  The  holder 
of  that  mortgage  may  advance  upon  it  up  to  that  amount, 
and  may  be  secure  in  his  lien  to  the  extent  of  his  advances 
within  that  amount ;  such  having  been  the  agreement  be- 
tween himself  and  the  mortgagor;  unless  indeed  this  lien 
should  be  affected  by  the  equities  of  subsequent  incum- 
brancers or  grantees,  attaching  previous  to  any  advance." 

60.  As  examples  of  the  general  principle  above  stated,  it 
has  been  held  that  a  mortgage  of  this  description  may  be 
given  to  secure  future  advances,  or  as  a  general  security  for 
future  balances ;  and  this  security  may  be  taken  in  the  form 
of  a  mortgage  for  a  specific  sum,  sufficient  to  cover  the  float- 
ing debt  intended  to  be  secured.'  So,  when  mortgagees 
have  indorsed  bills  in  blank,  and  taken  the  mortgage  as  an 
indemnity,  it  is  not  affected  by  subsequent  mortgages,  though 
made  before  the  bills  are  put  in  circulation.^  Thus  a  mort- 
gage to  indemnify  indorsers  in  three  bills  of  exchange  for 
$4,000  each,  indorsed  in  blank,  and  delivered  to  the  mort- 
gagor to  raise  funds  with,  is  valid.'^  So,  a  deed  of  trust 
or  mortgage,  to  indemnify  the  sureties  of  an  executor,  will 
be  upheld  at  law  while  the  liability  continues.'^  So,  a  mort- 
gage, to  indemnify  the  mortgagee  against  future  indorse- 
ments for  the  mortgagor,  is  good  against  a  judgment  recov- 
ered after  such  indorsements;''  (i) 

1  Bank,   &c.  v.   Finch,  3   Barb.    Cli.         ='  H.id. 
29.3.  ■*  Hawkins  v.  May,  12  Alab.  673. 

-  Burdctt  V.  Clay,  8  B.  Mon.  287.  &  Kramer  v.  Bank,  &c.  15  Ohio,  253. 

(/)  It  is  hold  in  Virjiinia,  that  a  mortgage  to  secure  all  debts  due,  and  all 
suretyships  of  the  mortgagee  for  the  mortgagor,  shall  be  a  valid  security  for 
lial^Ilitics  exii^tiiig  (il  Ike  timf:.  Vatineter  v.  Vanneter,  3  Gratt.  148.  So,  in 
Oliio,  where  a  mortgage  contains  a  provision  to  secure  future  advances,  a 
second  mortgage  will  have  precedence,  to  tlie  extent  of  all  advances  made 
after  it  is  recorded.     S^jader  u.  Lawler,  17  Ohio,  371. 


CH.  XII.]      ESTATE   OF   THE   MORTGAGEE. — TACKING,   ETC.      289 

61.  Mortgage  to  secure  "  also  what  I  may  owe  him  on 
book."  At  the  maldng  of  the  mortgage,  there  was  no  sub- 
sisting  account  between  the  parties.  Held,  the  condition 
must  apply  to  future  accruing  accounts.^ 

62.  In  Melland  v.  Gray ,2  a  bond  and  mortgage  were  made 
by  an  only  son  to  his  father,  nominally  to  secure  a  certain 
sum  of  money.  It  was  decided,  however,  upon  the  facts 
and  circumstances  of  the  case,  —  the  son  having  been  a 
young  man,  just  entering  the  army,  and  the  father  having 
lived  more  than  fifteen  years,  and  not  being  proved  to  have 
demanded  or  received  any  interest,  but  during  the  whole 
time  having  maintained  the  son,  —  that  the  bond  should  be 
taken  as  a  running  security,  and  the  son  charged  only  for 
the  amount  admitted  by  him  to  have  been  received,  in  the 
absence  of  other  evidence. 

63.  A  statute  of  New  Hampshire  provides,  (in  substance,) 
that  a  mortgage  shall  stand  as  security,  only  for  such  claims 
as  are  expressly  stated  therein.  In  the  case  of  New  Hamp- 
shire Bank  v.  'Willard,^  on  the  16th  of  August,  1836,  a  mort- 
gage was  made  by  the  defendant,  conditioned  to  pay  the 
plaintiff  $5,000  on  or  before  August  16,  1838,  on  payment 
of  which  "  this  deed,  as  also  a  certain  bond,"  &c.,  "  shall  be 
void."  The  condition  of  the  bond  was  to  pay  to  the  bank 
all  discounts  of  the  mortgagor  on  "  notes,  &c.,  made,  &c.,  on 
or  before  August  16,  1838,"  or  which  being  now  made,  &c., 
shall  before  said  day  be  discounted  by  said  bank ;  and  in- 
demnify the  bank  against  all  damages,  &c.,  arising  there- 
from. At  the  making  of  the  mortgage,  the  plaintiffs  held  a 
note  for  $6,200  signed  by  the  defendant  and  another,  which 
had  been  discounted  for  them.  September  3,  1836,'the  de- 
fendant gave  his  note  to  the  bank  for  $3,100,  being  his  half 
of  the  other  note  ;  and  the  other  maker  also  secured  his  part 
of  the  note,  which  was  given  up.  August  16,  1838,  the  de- 
fendant was  indebted  to  the  plaintiffs  upon  several  notes 

1  McDanicls  r.  Colvin.  IG  Verm.  300.  ^  iq  N.  H.  210. 

2  2  Y.  &  Coll.  199. 

VOL.  I.  25 


290  THE.  LAW  OF  MORTGAGES.  [CH.  XII. 

made  subsequent  fo  the  mortgage.  Held,  the  mortgage 
stood  as  security  for  the  new  note  of  $3,100,  but  not  for  the 
subsequent  notes ;  the  statutory  provision  against  subsequent 
liabilities  applying  as  well  between  the  mortgagee  and  mort- 
gagor, as  in  reference  to  third  persons. 

64.  In  Leeds  v.  Cameron,^  it  was  contended,  that  the  com- 
mon law  had  been  changed  in  Ncav  Hampshire  by  the  fol- 
lowing legislative  provision  (being  the  same  above  referred 
to,  sect.  63,)  —  "  no  title,  &c.,  shall  be  incumbered  by  any 
agreement,  unless  such  agreement  or  writing  of  defeasance 
shall  be  inserted  in  the  condition  of  said  conveyance  and  be- 
come part  thereof,  stating  the  sum  or  sums  of  money  to  be 
secured,  or  other  thing  or  things  to  be  performed."  In  this 
case,  the  condition  was  to  pay  "  all  sums  which  now  are  or 
may  be  owing  to,  &c.,  from,  &c.,  on  account  or  otherwise," 
with  interest.  The  mortgage  also  secured  certain  specified 
notes.  It  was  held  by  Story,  J.,  that  such  was  not  the 
operation  of  the  act  in  question.  He  says  :  ^  —  "If  we  were 
to  give  to  these  words  the  restricted  construction  contended 
for,  the  statute  would  defeat  all  mortgages,  given  as  indem- 
nity ;  —  for  it  could  not  appear  in  certainty  upon  such  mort- 
gages, what  loss  or  injury  the  surety  or  other  person  would 
sustain.  So,  if  a  father  should  receive  from  a  son  a  mort- 
gage to  provide  suitable  maintenance  during  his  life,  the 
conveyance  would  be  void;  no  mortgage  would  be  good, 
given  to  secure  all  debts  due  to  the  mortgagee,  or  indeed  any 
debt  the  amount  of  which  was  not  specifically  ascertained 
and  stated.  The  whole  language  is  perfectly  satisfied,  by 
considering  it  to  require  the  nature  and  extent  of  the  claim 
to  be  so'  far  set  forth,  as  to  leave  no  doubt  as  to  its  identity ; 
to  require  that  all  mortgages  should  be  in  wi'iting,  as  it 
would  enable  creditors  in  all  cases  to  ascertain  whether  an 
estate  granted  was  absolute  or  conditional,  and  would  cut 
off  many  of  the  temptations  to  create  secret,  undefined  trusts, 
or  fraudulent  and   collusive  securities."     In  the  same  case, 

1  3  Sumn.  492.  2  ji,.  490^  493. 


CH.  XII.]   ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.   291 

however,  it  was  further  held,  that  this  statute  avoids  all  mort- 
gages for  the  payment  or  security  of  any  moneys  or  other 
things,  which  were  not  a  matter  of  right  and  positive  obliga- 
tion between  the  parties  at  the  time  of  the  mortgage ;  and 
that  a  mere  provision  for  prospective  advances  or  accounts, 
resting  in  the  discretion  of  the  parties  or  either  of  them, 
could  not  be  thus  secured. 

65.  In  Gordon  v.  Graham,^  a  mortgage  was  made  to  secure 
a  sum  already  lent,  and  all  sums  which  should  afterwards 
be  lent  or  advanced.  The  mortgagor  then  made  a  second 
mortgage,  to  one  having  notice  of  the  first,  and  the  first 
mortgagee,  having  notice  of  the  second  mortgage,  advanced 
a  further  sum.  Lord  Cowper  decreed,  that  the  second  mort- 
gagee should  not  redeem,  without  paying  the  whole  sum  ad- 
vanced by  the  first  mortgagee ;  saying,  "  it  was  the  folly  of 
the  second  mortgagee  with  notice  to  take  such  security." 

66.  A  mortgage  dated  on  the  18th  of  May  contained  the 
following  proviso  :  —  "  Whereas  the  mortgagee  has  indorsed 
for  the  mortgagor  a  note  for  $1,000,  and  has  agreed  to  in- 
dorse $1,000  in  a  note  or  notes  hereafter,  when  thereto  re- 
quested," if  the  mortgagor  shall  pay  said  notes,  the  deed  to 
be  void.  On  the  16th  of  June,  the  mortgagee  indorsed  a 
note  for  the  mortgagor  for  $1,000,  and  was  afterwards  com- 
pelled to  pay  it.  In  November,  the  mortgagor  made  another 
mortgage  to  a  bond  fide  creditor,  against  whom  the  former 
mortgagee  brings  a  bill  for  foreclosure.  Held,  the  former 
mortgage  was  a  valid  security  for  the  second  note.^ 

67.  In  the  case  of  Crane  v.  Dewing,-^  a  mortgage  was  con- 
ditioned, that  if  the  mortgagor  shall  pay  the  mortgagee  the 
sums  to  be  advanced  by  the  latter,  according  to  an  agree- 
ment mentioned  in  a  certain  bond  of  even  date  from  the 
mortgagor  to  the  mortgagee  ;  and  fulfil  every  other  agree- 
ment mentioned  in  said  bond,  and  build  the  bridge  therein 
mentioned,  and  do  all  other  things  contained  therein  ;   the 


1  7  Vin.  52  E.  Tl.  3  ;  2  Eq.  Cas.  Abr.  -^  Hubbard  v.  Savage,  8  Conn.  215. 

598.  ^  7  Conn.  387. 


292  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

deed  and  bond  to  be  void.  After  a  second  mortgage  to 
another  person,  advances  were  made  by  the  first  mortgagee 
to  the  mortgagor.  Held,  the  mortgage  should  stand  as 
security  for  such  advances, 

67  a.  Mortgages,  from  parties  in  failing  circumstances,  to 
secure  the  mortgagee  for  certain  liabilities ;  the  conditions 
setting  forth,  that  the  mortgagee  was  accommodation  in- 
dorser  and  signer  for  the  mortgagors  on  sundry  notes,  drafts, 
and  bills  of  theirs  to  the  amount  of  $50,000,  which  were 
then  maturing  ;  of  which  they  could  not  give  a  particular 
description,  but  which  it  belonged  to  them  to  pay  and  meet. 
When  the  mortgages  were  made,  it  was  necessary,  for  the 
mortgagees'  security,  that  they  should  be  given  immediately, 
and  before  the  notes,  &c.,  could  be  more  accurately  de- 
scribed ;  they  not  being  then  in  possession  of  either  of  the 
parties.  Held,  the  mortgages  were  not  void  for  uncertainty, 
but  were  valid  against  subsequent  incumbrancers.' 

67  b.  Mortgage  to  two  partners,  to  secure  a  claim  "  on 
book,  for  goods  sold,  &c.,  in  about  the  sum  of  $5,000,"  as 
specified  in  the  deed ;  and  to  another  person  to  secure  him 
as  indorser,  &c.,  to  the  amount  of  $50,000.  The  real  claim 
of  the  partners  was  $2,505.85 ;  and  the  indorser's  liabilities 
exceeded  $50,000.  The  latter  received  other  securities  at 
the  same  time,  but  not  equal  to  tlie  amount  of  his  indorse- 
ments. Held,  the  partners  took  pro  rata,  and  only  in  the 
proportion  of  their  real  claim  to  $50,000  ;  and  that  their 
claim  was  specified  with  sufficient  certainty,  as  against  sub- 
sequent incumbrancers.^ 

67  c.  In  September,  1846,  the  defendant  took  a  mortgage 
to  secure  certain  notes.  The  mortgagor,  to  secure  a  note  of 
$200,  made  a  subsequent  mortgage  to  the  plaintiff,  dated 
January  17,  1848,  but  delivered  and  accepted  January  18th. 
Before  the  18th  the  mortgagor  was  not  indebted  to  the 
plaintiff",  but  the  securities  were  given  and  taken  under  an 
agreement  that   the  plaintiff"  should  open  an  account  with 

'  Lewis  V.  Do  Forest,  20  Conn.  427.  '^  lb. 


en.  XII.]   ESTATE  OF  THE  MORTGAGEE.  —  TACKING.  ETC.     293 

the  mortgagor,  and  sell  him  goods,  and  that  the  latter  should 
make  payments  which  would  keep  the  amount  due  not  more 
than  $200.  An  account  Avas  immediately  opened,  and 
goods  sold  to  the  amount  of  ^103.  The  account  continued 
about  nine  months,  the  balance,  at  the  closing  of  it,  being 
$180,  with  interest,  and  having  never  equalled  $200.  After 
the  second  mortgage,  the  mortgagor  conveyed  his  equity  of 
redemption  to  the  defendant,  who  gave  up  the  mortgage 
notes.  The  plaintiff  brings  a  bill  to  redeem.  Held,  the 
plaintiff's  mortgage  took  effect'  from  the  delivery ;  that  the 
securities  given  to  the  plaintiff,  and  the  sale  of  goods  made 
at  that  time,  constituted  parts  of  one  transaction ;  that  the 
condition  of  that  mortgage  was  truly  expressed,  and  with 
sufficient  certainty ;  that  the  defendant  did  not  stand  as  a 
purchaser  for  valuable  consideration,  but  as  a  mortgagee, 
with  the  equity  of  the  mortgagor  in  the  first  mortgage  ex- 
tinguished, giving  the  plaintiff,  whose  right  was  unimpaired, 
a  title  to  redeem  ;  and  that  the  defendant  had  no  equity 
superior  to  that  of  the  plaintifiV 

68.  Mortgage,  conditioned  nominally  upon  the  payment 
of  a  certain  sum,  but  really  to  secure  different  sums  then 
due,  proposed  subsequent  advances,  and  liabilities  to  be  in- 
curred to  an  uncertain  amount.  It  appeared  that  there  was 
no  fraud  in  the  transaction.  Held,  although  the  incorrect 
statement  of  the  true  condition  rendered  the  mortgage  sus- 
picious, yet,  being  proved  fair,  it  should  stand  as  security  for 
all  advances  made  upon  the  faith  of  it,  as  against  all  persons 
who  were  not  injured  and  deceived  by  the  misrepresentation; 
but  not  for  advances  made  after  notice  of  a  subsequent  con- 
veyance by,  or  incumbrance  against,  the  mortgagor.^ 

69.  A_^ mortgage  was  made  to  secure  a  note,  given  by  the 
mortgagor  for  the  full  amount  of  a  debt  due  the  mortgagee, 
and  of  the  liability  of  the  latter  for  the  former  as  a  surety. 
The  next  day,  before  any  payment  by  the  mortgagee  as 
surety,  the  mortgagor  assigned  his  property  for  benefit  of 

1  Mix  r.  Cowlcs,  20  Conn.  420.  -  Shirras  v.  Cai^',  7  Cranch,  34,  50-51. 

25* 


294  THE   LAW   OF  MOKTQAGES.  [CH.  XII. 

creditors.     Held,  the  mortgage  was  a  valid  security  for  the 
debt  due  to  the  mortgagee.^ 

70.  Mortgage,  conditioned  to  pay  any  subsequent  account 
which  might  accrue  from  the  mortgagor.  A  second  mort- 
gage having  been  made  of  the  same  premises  and  duly 
recorded,  held,  the  first  should  stand  as  security  for  any 
balance  which  might  become  due  to  the  mortgagee,  unless 
he  were  expressly  notified  by  the  second  mortgagee  of  his 
incumbrance,  and  that  he  must  make  no  further  advances 
upon  the  mortgage.^ 

71.  In  New  York,  where  a  judgment  may  be  confessed,  as 
well  as  a  mortgage  made,  to  secure  future  indebtedness,  it 
has  been  held,  that  the  judgment  shall  take  precedence  of  a 
subsequent  mortgage,  although  the  advances  be  made  by  the 
judgment  creditor  after  registration  of  the  mortgage,  unless 
such  creditor  have  actual  notice  of  it.  The  recording  act 
declares,  that  every  conveyance  not  recorded  shall  be  void 
against  any  subsequent  purchaser  in  good  faith  and  for  a 
valuable  consideration,  whose  conveyance  shall  be  first  duly 
recorded.  (2  Rev.  Sts.  3d  ed.  40.)  The  record  is  construc- 
tive notice  to  a  subsequent  purchaser,  but  in  no  wise  affects 
a  prior  purchaser  or  incumbrancer.  It  is  prospective,  not 
retrospective,  in  its  operation.^ 

71  a.  A  second  mortgagee  had  a  judgment,  execution,  and 
levy  on  the  land  for  the  mortgage  debt ;  and  it  was  agreed 
that  he  should  hold  the  mortgage  and  judgment  to  secure 
him  as  a  surety  on  certain  notes.  Held,  he  should  thus  hold 
them  against  a  subsequent  incumbrancer ;  and  that  the 
holder  of  the  notes  was  also  entitled  to  the  benefit  of  the 
security  in  the  same  way.* 

72.  Where  a  mortgage  is  made  in  part  to  secure  future 
debts,  the  Court  will  not  interfere  in  appropriating  the  pro- 
ceeds of  sale  to  the  prejudice  of  the  mortgagee,  and  in  favor 
of  a  surety  for  the  mortgagor. 

'  Sanford  v.  Wheeler,  l.'J  Conn.   1G5.         ;?4G ;  Stiivvesimt  v.  Hall,  2  IJarb.  Clia. 

'■^  McDaniels  v.  Colvin,  16  Verm.  -.im.         151. 

3  Tniscott  I'.   King,  G   Barb.   (Sup.j  '  Skiilman  r  Tecplc,  Saxt.  232. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.     295 

73.  Mortgage,  to  secure  payment  of  all  sums  then  owing, 
or  afterwards  to  become  due,  from  the  mortgagor  to  the 
mortgagee,  upon  any  existing  or  future  note,  of  which  the 
mortgagor  might  be  drawer  or  indorser.  Upon  a  sale  of  the 
premises,  the  proceeds  were  insufficient  to  pay  a  note,  for 
which  there  was  no  security  but  the  mortgage.  Held,  an 
accommodation  indorser,  upon  a  note  discounted  after  the 
mortgage,  could  not  require  an  equal  distribution  of  the  fund 
between  both  notes.  The  Court  say  :  —  "To  this  mortgage, 
Stansbury  and  the  Union  Bank  alone  were  parties.  Under 
it,  at  law,  no  right  was  acquired,  no  interest  passed ;  upon 
it  no  action  could  be  maintained  but  by  the  bank.  The 
object  of  its  execution  was,  not  to  indemnify  drawers  or  in- 
dorsers,  but  to  insure  to  the  Union  Bank  the  payment  of 
all  notes  negotiated  by  them.  'Tis  true,  if  the  fund  had 
been  sufficient,  those  who  were  on  his  paper  would,  in 
equity,  be  protected  from  loss.  But  this  was  a  consequence, 
not  the  design  of  his  act.  The  attempt  to  sustain  the  claim 
of  the  appellee  by  the  doctrine  of  substitution  is  equally  un- 
tenable. Such  relief  is  never  extended  to  a  security,  but 
upon  the  assumption  that  the  creditor's  debt  has  been  or  is 
to  be  fully  paid ;  that  his  further  detention  of  the  mortgaged 
property  is  against  equity  and  good  conscience."  ^ 

74.  In  Garber  v.  Henry ,2  the  condition  was,  to  pay  "  the 
several  sums  of  money  which  he  may,  from  time  to  time, 
owe,  at  the  times  appointed,  &c.,  according  to  the  terms  and 
conditions  of  an  article  of  agreement,"  &c.,  which  agreement 
was  not  recorded.  Held,  as  the  mortgage  referred  to  the 
agreement,  it  was  not  necessary,  as  against  a  creditor  who 
recovered  a  judgment  while  such  agreement  remained  in 
force,  that  it  should  be  recorded  with  the  mortgage ;  the 
reference  being  sufficient  to  put  him  upon  inquiry.  The 
case  does  not  distinctly  find,  whether  any  part  of  the  goods 
referred  to  in  the  contract  were  furnished  after  the  judgment 


1  Union  Bank,  &c.  v.  Edwards,!  Gill  ^  6  Watts,  57. 

&  J.  346,  363,  364,  365. 


296  THE   LAW   OF   MORTGAGES.  [CH.  XII. 

was  recovered,  but  the  Court  remark:^  — "  He  has  no  equity 
against  the  mortgagee,  as  to  claims  subsisting  when  the  lien 
of  his  judgment  attached ; "  implying  that  the  whole  debt 
was  then  subsisting. 

75.  Where  one  of  several  partners  mortgages  his  separate 
property  for  future  advances,  to  be  made  to  the  firm,  to  a 
certain  amount ;  the  mortgage  security  will  terminate  at  the 
death  of  any  one  of  the  partners,  as  to  any  advances  not 
then  made,  unless  the  guaranty  be  clearly  intended  to  be  a 
continuing  one.^ 

76.  The  rights  of  a  subsequent  mortgagee  cannot  be  prej- 
udiced by  any  enlargement  of  the  liability  of  the  mortgagor 
to  the  first  mortgagee,  growing  out  of  the  further  relation  be- 
tween them  of  lessor  and  lessee. 

77.  In  the  case  of  St.  Andrew's  Church  v.  Tompkins,^  the 
defendant  purchased  land  subject  to  certain  leases,  and  to 
secure  the  price  gave  the  plaintiffs  three  bonds,  payable  with- 
out interest,  with  a  mortgage  of  the  land,  and  also  a  bond 
with  interest ;  for  non-payment  of  which  interest  the  plain- 
tiffs bring  this  bill  to  foreclose.  It  was  agreed  in  writing,  at 
the  time  of  purchase,  that  the  plaintiffs  should  receive  the 
rents  on  the  leases  instead  of  interest  upon  the  three  bonds, 
the  leases  terminating  at  the  times  of  payment  of  the  bonds. 
The  defendant  made  a  subsequent  mortgage,  the  second 
mortgagee  having  no  notice  of  the  leases,  or  of  the  arrange- 
ment between  the  plaintiffs  and  defendant,  above  referred  to. 

/  Neither  the  leases,  nor  any  assignment  of  them,  nor  the 
agreement  as  to  the  rents,  were  on  record.  The  lessees  con- 
tinued to  occupy  and  pay  rent  to  the  plaintiffs,  till  they  sur- 
rendered the  leases  to  the  defendant,  without  notice  to  the 
plaintiffs,  and  the  defendant  paid  rent  to  the  plaintiffs,  till  a 
short  time  before  the  suit.  The  second  mortgagee,  until  re- 
cently, knew  nothing  of  the  leases,  or  their  surrender.     Upon 


1  6  Watts,  59.  3  7  Johns.  Clia.  14. 

-  Bank,  &c.  v.  Cliri.stic,  8  CI.  &  Fin. 
214. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE.  —  TACKING,  ETC.     297 

a  foreclosure  and  sale  of  the  premises,  held,  the  plaintiffs 
could  not  be  allowed  to  enlarge  their  demand  beyond  what 
it  appeared  upon  the  record,  by  receiving  interest  upon  these 
bonds,  in  consequence  of  the  arrangement  as  to  rents.  The 
Court  say:^  —  "The  bank  is  not  chargeable  with  notice  of 
the  leases,  or  of  the  agreement  of  the  mortgagor  to  apply  the 
rents  to  the  plaintiffs  as  a  substitute  for  interest.  It  is  the 
policy  of  the  registiy  act,  that  a  subsequent  incumbrancer 
should  be  able  to  ascertain  with  certainty  the  extent  of  the 
prior  incumbrance ;  and  if  moneys  not  mentioned  in  the 
bond  or  mortgage  can  be  covered  by  them,  when  the  rights 
of  a  subsequent  mortgagee  are  interposed,  and  to  whom  no 
fraud  or  negligence  is  to  be  imputed,  it  would  go  to  weaken 
very  essentially  the  value  of  mortgage  security." 

1  7  Johns.  Ch.  16. 


298 


THE    LAW   OF   MORTGAGES. 


[CH.  XIII. 


CHAPTER    XIII. 

ESTATE    OF    THE    MORTGAGEE. SUCCESSIVE    MORTGAGES    OF    THE 

SAME    PROPERTY. RIGHTS    OF  PARTIES  COLLATERALLY  INTER- 
ESTED   IN   THE   MORTGAGED   ESTATE. 


1.  Land  subject  to  mortgages  may  be 
further  mortgaged.  General  rights  of 
subsequent  mortgagees  ;  when  they  be- 
come entitled  to  priority,  &c. 

20.  Assignment  of  a  prior  mortgage 
to  a  subsequent  mortgagee ;  rights  of 
such  mortgagee,  upon  paying  the  first 
mortgage. 

24.  Equitable  application  of  estates 
subject  to  successive  mortgages. 


31.  Rights  of  parties  collaterally  lia- 
ble for  debts  secured  by  mortgage  ;  sure- 
ties ;  subsequent  mortgagees. 

47.  JMortgages  of  indemnity  to  sure- 
ties, &c. 

57.  Transfer  of  different  estates,  sub- 
ject to  one  mortgage.  Equitable  appor- 
tionment of  the  mortgage  debt. 


1.  A  MORTGAGOR  may  mortgage  his  equity  of  redemption, 
or,  as  it  is  commonly  expressed,  make  a  second  mortgage 
of  the   land,  (a)      So  the  right   of  redeeming  any  number 


(«)  So  a  mortgagee  takes  subject  to  ipr'ior  judgment  liens;  but  they  do 
not  affect  the  validity  of  the  mortgage.  Fitzgerald  v.  Beebe,  2  Eng.  311. 
See  Taylor  v.  Maris,  5  Rawle,  51.  Land,  subject  to  the  lien  of  an  e.xecu- 
tion,  may  be  mortgaged;  and  the  mortgagor  cannot  interfere  with  the  mort- 
gagee's title,  by  ordering  a  sale  of  more  than  enough  to  satisfy  the  execu- 
tion. Addison  v.  Crow,  5  Dana,  279.  Conveyance,  Avith  warranty,  of 
land  subject  to  three  mortgages,  and  also  to  a  judgment  prior  to  the  first,  of 
which  the  grantee  had  no  notice.  Upon  this  judgment  an  execution  was 
issued,  the  land  sold  under  it,  and  purchased  by  the  plaintill",  and  after- 
wards from  liim  by  the  grantee.  Held,  the  latter  took  the  land  discharged 
of  the  third  mortgage.  McCammon  r.  Worrall,  11  Paige,  09.  Where  a 
judgment  is  docketed  against  a  mortgagor,  between  the  time  of  giving  the 
mortgage  and  its  foreclosure  by  advertisement,  and  aji.fa.  issues  after  fore- 
closure, upon  which  the  land  is  sold,  and  the  purchaser  tenders  to  the  pur- 
chaser.under  the  mortgage  sale  the  amount  of  the  mortgage,  with  the  costs 
of  foreclosure ;  the  former  cannot  maintain  ejectment  against  tenants  of  the 
latter.  Post  v.  Arnot,  2  Denio,  344.  Land  being  subject  to  two  mortgages, 
a  person  advanced  money  to  the  mortgagor  to  pay  the  second,  which  was 


CH.  XIII. J  SUCCESSIVE   MORTGAGES,   ETC.  299 

of  successive  mortgages  may  be  mortgaged  anew.     More 
numerous  and  complicated  questions  in  the  law  of  mortgages 


discharged,  and  the  lender  took  a  new  mortgage,  the  premises  l)eing  then 
subject  to  a  judgment  against  the  mortgagor,  who  had  concealed  the  fact 
from  the  lender.  Upon  a  bill  to  foreclose  the  first  mortgage,  the  premises 
■were  sold.  Held,  that  the  surplus,  after  paying  the  first  mortgage,  should 
be  applied  to  the  last,  the  judgment  creditors  having  neglected  to  present 
their  claim.  Bui'chard  v.  Phillips,  1 1  Paige,  6G.  In  New  York,  a  mort- 
gage for  purchase-money  has  priority  of  a  judgment  against  the  mortgagor, 
whether  prior  or  subsequent  to  such  mortgage.  Frelinghuysen  v.  Golden, 
4  Paige,  204.  Laud  on  which  was  a  mortgage  for  the  purchase-money,  was 
sold  for  taxes,  and  A.,  the  purchaser,  gave  his  bond  to  the  treasurer,  for  the 
use  of  the  last  owner  of  the  lot,  for  the  surplus  over  the  amount  due  for 
taxes.  B.  had  obtained  a  judgment  against  the  owner  of  the  land,  and  sum- 
moned A.  as  his  garnishee.  Held,  the  owner  of  the  mortgage  was  entitled 
to  the  surplus  under  the  Act  of  April  14, 1840,  and  that  A.  was  bound  to  de- 
fend the  interest  of  the  mortgagee.  Kelso  v.  Kelly,  14  Penn.  204.  A 
mortgagee  was  compelled,  for  his  own  security,  to  satisfy  a  prior  judgment 
against  the  mortgagor.  Upon  a  sale  of  the  property,  held,  he  should  re- 
ceive from  the  proceeds  the  amount  of  the  judgment,  as  well  as  the  mort- 
gage. Silver,  &c.  i'.  North,  4  Johns.  Ch.  370.  Land  being  subject  to  a  mort- 
gage and  judgment,  the  owner  of  a  part  of  it  sold  such  part  to  the  owner  of 
the  residue,  "  under  and  subject  to  the  j^ayment  of  the  judgment  and  liens 
thereon,"  and  took  a  mortgage  back.  The  whole  land  was  afterwards  sold 
on  execution  against  the  vendee.  Held,  the  vendor's  mortgage  should  be 
paid  from  the  proceeds  of  the  whole  lot,  next  after  the  first  mortgage  and 
judgment,  in  preference  to  the  judgments  against  the  vendee.  Devor, 
1  Harr.  (Penn.)  413.  Where  a  mortgagee,  whose  mortgage  is  the  first  lien 
on  an  estate,  buys  the  same  at  a  sale  under  a  junior  judgment,  without  any 
express  stipulation  between  him  and  the  sheriff,  —  he  stands  like  all  other 
purchasers,  and  cannot  require  a  deed  from  the  sheriff,  on  crediting  the 
amount  of  his  bill  in  satisfaction  of  his  mortgage.  Crawford  v.  Boyer, 
14  Penn.  380.  Mortgaged  premises  were  sold  under  a  judgment  subse- 
quent to  the  mortgage,  which  was  afterwards  foreclosed,  aud  the  mortgage 
debt  paid  by  the  purchaser  at  sheriff's  sale.  Held,  such  purchaser  should 
be  protected  against  the  purchaser  under  the  mortgage,  having  notice  of 
the  sheriff's  sale  before  his  purchase  was  complete.  Seymour  r.  Preston, 
Spears,  Ch.  481.  If  the  assignee  of  an  equity  of  redemption  acquires  a  title 
obtained  under  a  judgment,  prior  to  the  mortgage,  and  the  mortgagor  re- 
funds to  him  the  sum  paid  for  the  judgment,  the  title  acquired  under  the 


300  THE   LAW   OF  MORTGAGES.  [CH.  XIII. 

probably  arise  from  this  source  than  from  any  other.  The 
general  principle  is,  that  mortgages  duly  recorded  have  pref- 
erence according  to  the  order  in  which  they  were  made ;  (6) 
that  a  second  mortgagee  stands  in  the  place  of  the  mort- 
gagor, as  to  his  right  of  redeeming  the  first  mortgage  ;  and 
so,  in  reference  to  further  mortgages  of  the  same  property, 
each  new  mortgagee  succeeds  to  the  rights  of  his  mortgagor. 
A  second  mortgagee  may  either  redeem  from  the  first  mort- 
gagee, or  foreclose  his  own  mortgage.^  It  is  said,  a  second 
mortgagee  has  full  power,  by  paying  off  the  first  mortgage 
and  taking  the  entire  control  of  the  mortgaged  premises,  as 
against  the  mortgagor,  to  protect  himself  against  any  appre- 
hended injury  from  the  neglect  of  the  first  mortgagee  to 
take  and  continue  actual  possession,  so  as  to  render  the  in- 
come of  the  premises  available  towards  the  discharge  of  the 
debt  secured  by  the  first  mortgage.  This  would  effectually 
secm'e  him  against  any  collusion  between  the  first  mort- 
gagee and  the  mortgagor.^  (c)     So,  it  is  said,  a  second  mort- 

1  Norton  v.  Warner,  3  Echv.  106.  -  Per  Dewey,  J.     Charles  v.  Dunbar, 

4  Met.  502. 


judgment  -will  be  subordinate  to  the  mortgage.  White  r.  Butler,  13  111. 
100.  In  equity,  such  title  will  be  treated  as  if  obtained  by  and  in  the  name 
of  the  mortgagor.  lb.  If  the  mortgagor,  or  a  purchaser  from  him,  pays  off 
the  mortgage,  and  it  is  discharged,  there  being  a  subsequent  judgment  on 
the  premises,  under  which  they  are  sold,  the  purchaser  at  the  latter  sale 
will  take  the  premises  discharged  of  the  mortgage,  and  equity  will  not  re- 
lieve the  vendee  of  the  mortgagor,  there  being  no  mistake  of  fact,  fraud, 
or  accident.     Garwood  v.  Eldridgc,  1  Green,  Ch.  145. 

(I))  So  where  an  estate  is  purchased  free  from  incumbrance,  and  the  pur- 
chaser takes  possession  without  payment ;  the  purchase-money  is  considered 
as  applied,  so  far  as  it  will  go,  in  payment  of  the  incumbrances  according  to 
priority.  Coote,  483  ;  Greenwood  v.  Taylor,  14  Sim.  505  ;  Smith  v.  Smith, 
9  Beav.  80.     See  Mackenzie  v.  Gordon,  6  CI.  &  Fin.  875. 

(c)  A  subsequent  mortgagee  sought  to  set  aside  a  purchase  under  a  de- 
cretal sale  in  favor  of  a  prior  mortgagee,  at  which  the  latter  had  become  the 
purchaser.  The  (Jourt  of  Appeals  allowed  him  to  redeem  upon  terms  ;  but, 
he  having  delayed  to  do  so,  the  Chancellor  afterwards  refused  to  quash  the 


CH.    XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  301 

gagee  of  two  estates,  subject  to  prior  distinct  mortgages, 
may  redeem  either  of  them,  and  then  foreclose  as  to  that 
particular  estate ;  and  if  he  sue  to  redeem  both  the  prior 
mortgages,  he  may  have  a  decree  to  redeem  both  or  either  of 
them,  and  to  foreclose  the  mortgagor  accordingly.^  {d) 

1  o.  Where  a  mortgagee  has  been  compelled  to  pay  an 
existing  incumbrance,  as  well  on  the  lands  mortgaged  to  him 
as  on  other  lands,  the  owner  of  such  other  lands  will  be  de- 
creed to  pay  him  his  proportion  of  such  incumbrance.^    . 

1  b.  A  mortgage  was  made  to  secure  a  void  claim,  and 
a  subsequent  mortgage,  to  another  person,  to  secure  a  just 
debt.  The  assignee  of  the  right  to  redeem  paid  the  first 
mortgage.  Held,  the  last  mortgagee  could  not  recover  of 
the  first,  the  money  so  paid.^ 

1  Coote,  470.  -^  Ellsworth  v.  Mitchell,  31  Maine,  247. 

2  Lyman  v.  Little,  15  Verm.  576. 


sale  and  allow  him  to  redeem.  Held,  on  account  of  the  delay  and  a  subse- 
quent compromise  and  pending  litigation  between  the  parties,  the  refusal 
■was  proper.  Dale  v.  Shirley,  8  B.  Mon.  524.  In  Alabama,  a  second  mort- 
gagee may  either  pay  the  first  mortgage,  and  then  file  a  bill  to  have  a  sale 
for  payment  of  both  mortgages,  or  he  may  file  a  bill  for  foreclosure  without 
payment,  making  all  necessary  parties,  and  have  a  decree  for  sale  to  pay 
both.  Cullum  v.  Erwin,  4  Ala.  N.  S.  452  ;  Chambers  v.  Mauldin,  lb.  477. 
In  Michigan,  a  subsequent  mortgagee  may  redeem,  where  the  premises  are 
sold  upon  a  prior  mortgage  under  the  statute.  Kimmell  v.  Willard,  1  Doug. 
217. 

(d)  Where  B.  executed  to  A.,  at  different  times,  two  mortgages  of  sepa- 
rate parcels  of  land,  to  secure  distinct  debts ;  on  a  bill  of  foreclosure, 
brought  by  A.  against  B.  and  subsequent  incumbrancers ;  held,  A.  was  not 
entitled  to  a  decree,  foreclosing  such  subsequent  incumbrancers  of  all  right 
to  redeem  either  mortgage,  upon  failure  to  pay  both,  but  that  they  were  en- 
titled to  redeem  one  of  such  mortgages,  without  the  other.  Frink  v.  Branch, 
16  Conn.  260.  Where  two  successive  deeds  of  trust  are  made  to  one  trustee 
of  the  same  property,  but  for  different  cestuis,  and  the  trustee  sells  under 
the  latter  one ;  the  grantor's  equity  of  redemption  passes,  and,  upon  a  bill 
to  enforce  the  prior  lien,  the  purchaser's  title  cannot  properly  be  declared 
void.     Graham  v.  King,  15  Ala.  563. 

VOL.  I.  *  26 


302  THE   LAW    OF   MORTGAGES.       '  [CH.  XIII. 

2.  In  England,  upon  the  principle  of  tacking,  to  which 
reference  has  been  already  made,  ( Supra,  ch.  12  ;)  a  third 
mortgagee  may  gain  priority  over  a  second  mortgagee,  by 
buying  up  the  first  mortgage  and  tacking  it  to  his  own, 
thereby  obliging  the  second  mortgagee  to  redeem  both  in 
order  to  redeem  one. 

3.  A  second  mortgagee  succeeds  to  all  the  rights  of  the 
mortgagor,  arising  out  of  any  special  agreement  between  the 
mortgagor  and  the  first  mortgagee  in  relation  to  the  land. 
Thus  if  the  mortgagor  leased  to  the  first  mortgagee,  who 
covenanted  to  pay  rent,  but  refuses  to  pay  it  to  the  second 
mortgagee  upon  demand,  not  having  paid  it  to  the  mort- 
gagor ;  upon  redemption  of  the  first  mortgage  by  the  second 
mortgagee,  the  first  mortgagee  must  account  for  the  profits 
towards  the  payment  of  his  claim.^ 

4.  By  agreement  of  parties  a  subsequent  mortgage  may 
take  precedence  of  a  prior  one. 

5.  By  an  express  statute,  the  State  Bank  was  prohibited 
from  taking  a  mortgage  of  property  already  incumbered,  to 
secure  a  loan ;  but  the  bank  took  a  second  mortgage  under 
a  valid  agreement  between  all  parties,  that  it  should  have 
precedence  of  the  first.  Held,  this  agreement  was  binding 
on  the  mortgagor,  and  an  execution  purchaser  of  the  equity 
took  subject  to  both  incumbrances.^ 

6.  Where  a  prior  incumbrancer  contracts  for  a  purchase 
of  the  land  in  discharge  of  his  debt,  and  assumes  the  pay- 
ment of  a  subsequent  mortgage  as  part  of  the  consideration  ; 
such  purchase  will  operate  as  an  extinguishment  of  his  mort- 
gage, and  give  priority  to  the  subsequent  mortgagee.  Thus 
in  the  case  of  Brown  v.  Stead,^  after  two  mortgages,  the 
mortgagor  charged  the  land  with  another  debt  to  the  first 
mortgagee.  He  -afterwards  entered  into  an  indenture  with 
the  second  mortgagee,  setting  forth  that  the  latter  had 
agreed  for  an  absolute  purchase  of  the  land  for  a  certain 

J  Newall  V.  Wright,  3  Mass.  138.  a  5  Sim.  535. 

2  State  Bank  v.   Campbell,   2  Rich. 
Eq.  (S.  C)  179. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,    ETC.  303 

sum,  being  the  amount  of  all  the  debts,  from  which  he  was 
to  pay  a  certain  part  to  the  first  mortgagee,  and  retain  the 
balance  in  satisfaction  of  his  debt.  In  consideration  of  the 
sum  named,  being  the  amount  of  the  first  mortgagee's  two 
claims,  the  payment  of  ivhich  the  second  mortgagee  assumed^ 
and  of  the  second  mortgagee's  own  debt,  the  mortgagor  con- 
veyed the  equity  of  redemption,  subject  to  the  claims  of  the 
first  mortgagee,  to  the  second  mortgagee,  and  the  latter  cov- 
enanted to  pay  the  former.  Held,  the  second  mortgagee's 
claim  was  hereby  extinguished,  and  the  first  mortgagee  need 
not  pay  it  in  order  to  maintain  a  bill  for  foreclosure  upon 
both  his  incumbrances. 

6  a,  F.  sold  land  to  C,  and  took  a  bond  and  mortgage 
from  C.  and  M.  to  secure  payment ;  C.  afterwards  sold  to  M. 
and  took  a  mortgage  back ;  F.  obtained  a  judgment  on  the 
bond  against  C.and  M.,  and  levied  on  the  personal  property 
of  M.,  but  the  execution  was  never  returned  ;  after  the  lapse 
of  two  years,  F.  assigned  the  balance  of  his  judgment  to  T., 
who  procured  from  M.  a  revival  of  the  judgment,  and  agreed 
that  he  would  have  the  execution  returned,  but  never  did. 
Held,  that  such  agreement  did  not  postpone  T.'s  claim  under 
F.'s  mortgage,  to  C.'s  mortgage.^ 

7.  If  an  agreement  is  entered  into  between  a  mortgagor 
and  two  successive  mortgagees,  that  the  first  mortgagee  shall 
take  other  security  and  release  his  mortgage,  and  the  second 
mortgagee  takes  the  land  in  satisfaction  of  his  claim,  accord- 
ing to  an  appraisal,  which  is  actually  made ;  the  first  mort- 
gagee cannot  maintain  a  bill  to  foreclose  his  mortgage, 
though  the  mortgagor  has  not  wholly  fulfilled  his  part  of 
the  agreement.^ 

8.  But  the  second  mortgagee  not  having  filed  a  cross-biU 
for  relief ;  held,  he  must  be  dismissed  from  the  case,  with 
costs ;  and  a  decree  of  foreclosure  was  made  against  the 
mortgagor  alone.^ 


1  Cathcart's  Appeal,  13  Penn.  416.  3  jbiQ, 

2  Simonds  v.  Brown,  18  Verm.  231. 


304  THE   LAW   OF  MORTGAGES.  [CH.  XIII. 

9.  In  the  case  of  Irwin  v.  Tabb,'  it  was  held,  that  where  a 
mortgage  is  made  to  several  persons,  to  seciire  several  debts, 
but  giving  a  partial  priority  to  some  over  others  ;  they  are  to 
be  treated,  in  reference  to  their  respective  claims  upon  the 
property,  as  parties  to  one  deed,  with  full  notice,  and  not  as 
prior  and  subsequent  mortgagees.  The  facts  of  the  case 
were,  that  a  mortgage  was  made  to  three  several  creditors  of 
the  mortgagor,  to  secure  preexisting  debts.  The  mortgagees 
were  absent  and  had  no  notice  of  the  mortgage.  The  sum 
secured  was  $8,000,  $2,000  to  be  paid  to  the  one  last 
named,  and  $3,000  each  to  the  others.  At  this  time,  the 
second  and  third  had  advanced  the  amount  of  their  respec- 
tive claims,  but  the  first  had  not.  He  afterwards,  however, 
made  up  the  full  amount.  The  property  was  sold  on  exe- 
cution under  the  mortgage,  but  the  proceeds  were  less  than 
the  whole  sum  secured.  Held,  the  mortgagee  last  named 
did  not  stand  in  the  position  of  a  subsequent  incumbrancer, 
but  as  having  an  interest  in  common  with  the  others,  under 
the  same  title  ;  that  he  had  neither  done  any  act  nor  relin- 
quished any  right  by  reason  of  the  mortgage,  to  his  own 
prejudice  ;  that  having  affirmed  the  mortgage  in  part,  he 
was  bound  by  it  in  the  whole ;  and  therefore  that  the  pro- 
ceeds of  sale  should  be  distributed  in  the  proportions  men- 
tioned in  the  deed. 

10.  Where  the  mortgages  bear  the  same  date,  and  are  ac- 
knowledged at  the  same  time,  with  a  general  agreement  that 
one  shall  have  priority  of  the  other ;  the  former  is  presumed 
to  have  been  first  delivered.^ 

10  a.  A  first  mortgage  described  the  land  as  lot  eighteen 
instead  of  eight.  A  second  mortgage  described  it  correctly 
as  to  the  number,  but  the  second  mortgagee  had  notice  of  the 
mistake  in  the  prior  mortgage.  Held,  the  prior  mortgage 
should  have  precedence  of  the  other.' 

11.  Where  a  bill  to   foreclose  was  brought  against  a  de- 

'  17  S.  &  R.  419.  8  Wiirbuiton   v.  Laiiman,  2  Greene, 

-  Jones  V.  Phelps,  2  IJurh.  Ch.  440.  420. 


CH.  Xm.]  SUCCESSIVE   MORTGAGES,   ETC.  305 

fendant  as  second  mortgagee,  and  he  did  not  directly  deny 
the  priority  of  the  plaintiff's  mortgage,  but  merely  stated 
that  his  was  of  the  same  date  ;  held,  it  should  be  presumed 
to  be  subsequent  to  the  plaintiff's,  and  was  no  defence.^ 

12.  A  second  mortgagee,  who  has  taken  a  conveyance 
with  the  title-deeds,  without  notice  of  the  first  mortgage, 
will  not  be  compelled  in  equity  to  deliver  up  the  deeds  ;  but 
the  first  mortgagee  will  be  left  to  his  action  of  trover  at  law, 
where  the  right  to  the  deeds  accompanies  the  legal  estate.^ 

13.  The  prior  right  of  a  first  mortgagee  may  be  established, 
in  a  proceeding  instituted  by  a  second  mortgagee,  to  which 
the  former  is  made  a  party  defendant,  although  the  object  of 
it  is  to  foreclose  the  second  mortgage.  Thus  the  assignee 
of  a  second  mortgage  filed  a  bill  of  foreclosure,  making  the 
assignee  of  the  first  mortgage  a  party,  who  in  his  answer 
prayed  "for  a  sale  of  the  land  and  priority  of  payment.  Held, 
in  case  of  sale,  he  should  be  first  paid.^ 

14.  A  sale  on  execution  upon  the  debt  secured  by  a  first 
mortgage  may  operate  to  extinguish  all  subsequent  mort- 
gages. 

15.  Mortgage,  to  secure  bonds  payable  in  ten  years,  with 
interest  semi-annually.  Judgment  was  recovered  on  the 
bonds  for  interest,  and  a  sale  made  within  ten  years  to  the 
mortgagee,  upon  a  venditioni.  Held,  this  divested  the  mort- 
gage and  all  subsequent  mortgages.* 

16.  In  the  following  case,  however,  no  such  extinguish- 
ment of  subsequent  mortgages  was  held  to  result  from  an 
execution  sale. 

17.  Three  successive  mortgages  of  the  sdme  land  were 
made  to  three  different  persons.  The  two  first  mortgagees 
entered  on  the  same  day  for  breach  of  condition.  Subse- 
quently, a  creditor  of  the  mortgagor  attached  his  right  of 
redemption,  recovered  judgment  against  him,  and  afterwards 


1  Holabird  r.Burr,  17  Conn.  556.  ^  Troth  v.  Hunt,  8  Blackf.  580. 

2  Head  v.  Egerton,  3  P.  Wms.  280;        «  Clarke  v.  Stanley,  10  Barr,  472. 
Hooper  v.  Eamsbottom,  6  Taunt.  12. 

26* 


306  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

purchased  the  first  mortgage,  and  took  an  assignment  of  it. 
He  subsequently  bought  the  right  in  equity  at  the  execution 
sale,  and,  a  year  having  expired,  supposing  and  representing 
himself  to  be  absolute  owner  of  the  estate,  made  a  warranty 
deed  of  it.     The  second  mortgagee  tendered  to  the  grantee 
the  sum  due  upon  the  first  mortgage,  protesting  that  he  con- 
sidered it  as  extinguished,  and  brings  a  bill  in  equity  to 
redeem.     Held,  the  execution  purchaser  did  not,  by  buying 
the  equity  of  redemption,  exclude  intervening  incumbrances, 
as  by  the  English  law  would  have  been  the  result,  the  doc- 
trine of  tacking  being  unknown  in  Maine  ;  that  the  execution 
sale  did  not  abridge  the  right  of  the  second  mortgagee  to 
redeem  the  first  mortgage  from  three  years  to  one  year,  this 
provision  applying  exclusively  to  the  relation  between  the 
mortgagor  and  execution  purchaser,  and  not  affecting  the 
claims  of  other  mortgagees,  prior  to  the  attachment,  which 
are  not  liable  to  be  impaired  by  any  dealing  between  the 
mortgagor  and  his  creditors ;  and  that  the  first  mortgage  was 
not  extinguished,  by  being  united  with  the  equity  of  redemp- 
tion in  the  hands  of  the  execution  purchaser.     Decreed,  that 
on  payment  of  the  sum  due  on  the  first  mortgage,  the  grantee 
of  the  execution  purchaser  should  surrender  the  land,  and 
convey  and  release  his  right  as  the  assignee  of  such  pur- 
chaser." 

18.  A  second  mortgagee  may  take  an  assignment  of  the 
first  mortgage,  with  all  the  benefits  incident  thereto.^  But 
to  an  action  by  a  second  mortgagee  for  the  land  against  a 
stranger,  it  is  no  defence  that,  after  commencement  of  suit, 
he  has  become  assignee  of  the  first  mortgage.'^ 

19.  Where  the  first  mortgage  is  paid  by  the  mortgagor,  a 
second  mortgagee  may  file  a  bill  for  an  assignment  of  the 
legal  estate,  though  the  mortgagor  have  tendered  him  the 
amount  of  his  debt,  and  a  decree  been  obtained  for  redemp- 
tion, until  the  time  fixed  for  redemption  has  arrived  ;  though 


1  Thompson  v.  Chandler,  7  Greenl.        ^  Bank,  &c.  v.  Peter,  13  Pet.  123. 
377.  'iHallu.  Bdl,  G  Met.  431. 


en.  xni.]  SUCCESSIVE  mortgages,  etc.  307 

(it  is  said)  he  will  probably  be  thereby  charged  with  costs,  if 
he  were  properly  notified,  six  months  beforehand,  of  the  pro- 
posed tender.! 

19  a.  On  a  bill  to  foreclose  by  a  junior  mortgagee,  the 
prior  mortgage  not  being  due,  the  plaintiff  will  be  allowed  to 
sell,  subject  to  the  first  mortgage.^ 

20.  Where  a  second  mortgagee  pays  the  first  mortgagee, 
if  justice  requires  it,  the  law  will  presume  aif  assent  by  the 
latter  to  the  use  of  all  securities  in  his  hands,  in  order  to 
compel  payment.^ 

21.  Certain  premises  being  subject  to  a  mortgage,  an 
attachment,  and  a  second  mortgage  subsequent  to  both,  the 
first  mortgagee  brings  a  bill  for  foreclosure,  to  which  the 
mortgagor  and  subsequent  mortgagee  are  parties,  and  obtains 
a  decree.  The  attaching  creditor  then  recovers  judgment, 
and  levies  his  execution  upon  the  premises,  subject  to  the 
first  mortgage.  Pending  the  time  limited  by  the  decree  of 
foreclosure,  and  within  six  months  after  the  levy,  the  second 
mortgagee  redeems  the  first  mortgage,  by  depositing  with  the 
clerk  of  the  court  the  amount  of  the  decree.  Held,  he  was 
hereby  subrogated  to  all  the  equitable  rights  of  the  fu-st  mort- 
gagee, and  could  hold  the  land  as  against  the  execution 
creditor,  till  reimbursed  the  amount  paid.* 

22.  On  the  4th  December,  1846,  A.  executed  two  mort- 
gages on  the  same  premises  for  the  purchase-money ;  one  to 
B.,  payable  in  nine  equal  annual  instalments  ;  and  the  other 
to  C,  for  $8,623,  payable  in  three  annual  instalments  ;  the 
first  to  become  due  December  4,  1856.  It  was  agreed  that 
the  mortgage  to  B.  should  be  the  first  lien.  This  mortgage 
was  subsequently  assigned  to  C,  and  foreclosed  under  the 
statute.  Upon  the  sale  of  the  premises,  January  5, 1850,  they 
were  struck  off  to  D.  for  a  sum  larger  than  the  amount  due 
upon  the  mortgage,  and  costs  of  foreclosure.     Held,  C.  was 

1  Coote,  476  j  Grugeon  v.  Gerrard,  4        ^  Downer  v.  Fox,  5  Washb.  (Verm.) 
Y.  &  Coll.  119.  388 ;  Ace.  King  v.  McVickar,  3  Sandf. 

2  Western,  &c.  v.  Eagle,  &c.,  1  Paige,     Cha.  199. 

284.  *  Downer  v.  Fox,  5  Washb.  388. 


308  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

entitled  to  have  the  mortgage  for  $8,623  first  satisfied  out  of 
the  surplus  money,  and  A.  only  to  the  balance.^ 

23.  Upon  a  principle  of  equitable  adjustment,  if  the  owner 
of  two  estates  first  mortgages  both  to  the  same  person,  and 
afterwards  one  of  them  to  another  person,  a  court  of  equity 
may  order  the  first  mortgagee  to  satisfy  his  claim  from  the 
estate  not  included  in  the  second  mortgage,  if  sufiicient  for 
that  purpose,  in  order  to  make  room  for  the  second  mort- 
gagee.2  (e) 

24.  So,  upon  a  bill  for  foreclosure,  subsequent  mortgagees 
may  require  the  plaintiff  to  apply  towards  the  payment  of  his 
debt  collateral  security  in  his  hands,  to  which  they  are  not 
parties.^  So,  it  is  said  this  equitable  application  will  be  made, 
"  provided  it  will  not  prejudice  the  rights  or  interests  of  the 
party  entitled  to  the  double  fuiid,  nor  do  injustice  to  the 
common  debtor,  nor  operate  inequitably  on  the  interests  of 
other  persons."  ^ 

25.  Spencer,  C.  J.,  applies  the  following  important  qualifi- 
cation to  this  rule  :  —  "A  court  of  equity  will  take  care  not 
to  give  the  junior  creditor  this  relief,  if  it  will  endanger 
thereby  the  prior  creditor,  or  in  the  least  impair  his  prior 
right  to  raise  his  debt  out  of  both  funds.  The  utmost  that 
equity  enjoins  in  such  a  case  is,  that  the  creditor  who  has  a 
prior  right  to  two  funds,  shall  first  exhaust  that  to  which  the 
junior  creditor  cannot  resort;  but  where  there  exists  any 
doubt  of  the  suflaciency  of  that  fund,  or  even  where  the  prior 

1  Barber  v.  Gary,  11  Barb.  549.  •''  Pettibonc  v.  Stevens,  15  Conn.  19. 

*  Lanoy  v.  Athol,  2  Atk.  446  ;  Me-         *  Per  Storrs,  J.,  Ayrcs  v.  Hiisted,  15 
chanics'  &c.  v.  Edwards,  1  Barb.  271.         Conn.  516. 


(t?)  In  South  Carolina, the  right  to  compel  a  resort  to  one  particular  fund 
amonT  several,  is  not  applied  in  favor  of  subsequent  incumbrancers  or  gen- 
eral creditors.  Bank  v.  Mitchell,  Rice,  (Equ.)  389.  The  principle  stated 
in  the  text  applies  to  a  judgment  creditor  and  mortgagee,  as  well  as  two 
successive  mortgagees.  But  if  the  mortgagee,  by  negligence,  allows  the 
judgment  creditor  to  levy  on  property  included  in  the  mortgage,  equity  will 
not  relieve.     Baine  v.  Williams,  10  S.  &  M.  113. 


CH.  Xm.]  SUCCESSIVE   MORTGAGES,   ETC.  309 

creditor  is  not  willing  to  run  the  hazard  of  getting  payment 
out  of  that  fund,  I  know  of  no  principle  of  equity  which  can 
take  from  him  any  part  of  his  security,  until  he  is  completely 
satisfied."  ^ 

26.  A  husband  and  wife  conveyed  the  equity  of  redemp-_ 
tion  of  her  land,  to  be  applied  in  payment  of  certain  claims 
against  the  husband,  which  were  previously  secured  in  part 
by  attachment  of  the  husband's  personal  property,  upon 
which  two  other  creditors  had  subsequent  attachments ;  the 
residue  of  the  equity  of  redemption  to  be  applied  in  payment 
of  a  debt  due  from  the  husband  to  his  daughter,  and  the 
balance,  if  any,  to  be  paid  to  anotlier  creditor  of  the  hus- 
band. The  two  subsequent  attaching  creditors  claimed  that 
the  grantee  should  be  required  to  resort  to  the  equity  of 
redemption  for  satisfaction,  before  proceeding  against  the 
attached  property.  Held,  upon  a  bill  of  interpleader,  the  law 
would  not  require  him  to  do  so,  as  the  property  constituting 
the  two  funds  did  not  wholly  belong  to  the  husband,  but  the 
land  belonged  to  his  wife,  and  was  conveyed  only  as  collat- 
eral security,  and  specifically  for  the  benefit  of  other  creditors, 
whose  equity  was  equal  to  that  of  the  subsequent  attaching 
creditors.^ 

27.  In  general,  a  second  mortgagee  of  one  estate  cannot 
be  compelled  by  a  first  mortgagee  of  that  estate  and  another 
to  redeem  the  fij-st  mortgage,  without  a  transfer  of  both 
estates.  But  if  between  the  two  mortgages  the  mortgagor 
sells  the  estate  not  included  in  the  second  mortgage,  and  the 
purchaser  afterwards  takes  an  assignment  of  the  first  mort- 
gage ;  the  purchaser  may  have  a  decree  in  one  suit  against 
the  mortgagor  for  the  completion  of  the  purchase,  and  against 
him  and  the  second  mortgagee  for  the  redemption  of  the 
estate  not  purchased  by  the  plaintiff,  on  payment  of  the  whole 
of  the  fijst  mortgage  debt,  or  for  foreclosure  of  that  estate.^ 


1  Evcrston  r.  Bootli,  19  Jolins.  493  ;         ^  Ayrcs  v.  Husted,  15  Conn.  505. 
Butler  w.  Elliott,  15  Conn.  187;  Hen-         '*  Sober  f.  Kemp,  6  Hare,  155. 
shaw  f.  Wells,  9   llum|ili.   5G8 ;  Stam- 
lord,  &c.  V.  Bencdiet,  15  Conn.  437. 


310  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

27  a.  Where  a  mortgage  debt  is  secured  by  other  property, 
and  the  mortgagor  conveys  the  land  subject  to  the  incum- 
brance, the  amount  of  which  is  taken  from  the  price,  and  the 
mortgagee  receives  a  part  of  his  debt  from  the  other  security, 
in  equity,  the  whole  is  still  chargeable  upon  the  land,  for  the 
benefit  of  the  mortgagee,  to  the  extent  of  the  balance  of  his 
debt,  and  of  the  mortgagor  for  the  residue.' (/) 

28.  The  rule  of  equitable  adjustment  or  apportionment  is 
applicable,  where  mortgaged  estates  descend  to  different 
heirs?  So  an  execution  purchaser  of  an  equity  of  redemption, 
as  well  as  a  subsequent  mortgagee,  may  in  equity  compel  a 
prior  mortgagee,  having  other  security,  to  exhaust  it,  before 
resorting  to  the  land.^ 

29.  Where  there  is  a  first  mortgage  on  two  estates,  a  second 
on  one  of  them,  and  a  third  on  the  other  or  both,  the  right  of 
marshalling  will  not  be  exercised  in  favor  of  the  second, 
against  the  third  mortgagee,  though  with  notice  of  the 
second  incumbrance.  In  such  case,  the  first  mortgage  will 
be  ratably  apportioned  between  the  two  estates.* 

30.  Mortgage  to  the  defendants,  to  secure  debts  due  to 
them  from  the  mortgagor,  and  also  from  a  corporation,  the 
corporation  at  the  same  time  mortgaging  to  secure  the  de- 
fendants' liabilities  on  its  account.  The  whole  property  was 
insufficient  to  extinguish  the  liabilities  of  either  description. 
Held,  subsequent  mortgagees  could  not  claim  the  application 
of  a  proportional  part  of  the  value  of  the  former  mortgage, 
towards  the  company  debt,  but  the  defendants  might  apply 
the  whole  of  it  to  the  private  debts  of  the  mortgagor.^ 

31.  In  connection  with  the  rights  and  obligations  of  parties 

1  Ferris  v.  Crawford,  2  Dcnio,  595.  *  Barnes  v.  Racstcr,  1  Y.  &  Coll.  401. 

■■^  Larioy  v.  Duke,  &c.  2  AtU.  444.  ^  Kellogg  v.  Kockwell,  19  Conn.  446. 

8  Miami,  &e.  v.  Bank,  &c.,  Wright,  249. 


(/)  In  such  case,  it  seems,  the  mortgagee,  having  brought  a  suit  for  fore- 
closure, cannot  discontinue  it,  until  the  amount  due  the  mortgagor  is  paid. 
Ibid. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,  ETC.  311 

arising  from  successive  mortgages,  may  be  considered  tjiose 
which  result  from  other  relations,  collateral  to  the  original 
transaction  between  mortgagor  and  mortgagee.  It  w^ill  be 
seen,  that  the  discretionary  and  flexible  powers  of  a  court  of 
equity  are  strikingly  exhibited,  in  adjusting  the  various 
claims  which  grow  out  of  a  conveyance  in  itself  very  sim- 
ple, —  the  transfer  of  land  as  security  for  a  debt. 

32.  One  of  the  cases  in  which  the  rules  of  equity  are  thus 
applied,  is  where^a  debt  secured  by  mortgage  has  also  been 
secured  by  the  personal  obligation  of  a  surety.  In  such  case, 
it  is  held  to  be  "  a  general  and  well-established  principle  of 

.equity,  that  a  surety,  or  a  party  who  stands  in  the  situation 
of  a  surety,  is  entitled  to  be  subrogated  to  all  the  rights  and 
remedies  of  the  creditor  whose  debt  he  is  compelled  to  pay, 
as  to  any  fund,  lien,  or  equity,  which  the  creditor  had  against 
any  other  person  or  property  on  account  of  such  debt."  ^  So 
it  is  held,  that  a  surety  for  a  debt  secured  by  mortgage  may, 
before  he  has  been  injured,  compel  payment  from  the  land, 
in  the  first  instance.^ 

33.  In  Hays  v.  Ward,^  Chancellor  Kent  says :  — "  This 
doctrine  does  not  belong  merely  to  the  civil  law  system.  It 
is  equally  a  well-settled  principle  in  the  English  law,  that  a 
surety  will  be  entitled  to  every  remedy  which  the  principal 
debtor  has,  to  enforce  every  security,  and  to  stand  in  the 
place  of  the  creditor,  and  have  those  securities  transferred  to 
him,  and  to  >fivail  himself  of  those  securities  against  the 
debtor.  This  right  stands  not  upon  contract,  but  upon  the 
same  principle  of  natural  justice  upon  which  one  surety  is 
entitled  to  contribution  against  another."  ^  So  it  is  said  in  a 
recent  English  case,  that  "  the  surety's  right  is  not  merely  a 

1  Per  Johnson,  J.,  Mathews  v.  Aikin,  Barnes  v.  Morris,  4  Ired.  Equ.  22  :  Skill- 

1    Comst.    599;   Root   v.   Bancroft,    10  man  r.  Teeple,  Saxt.  232. 

Met.  -IG  ;  Copis  v.  Middleton,  1  Tur.  &  -  M'Lean  v.  Lafayette,  &c.,  3  McL. 

K.  231  ;  Hod^i,^son  v.  Shaw,  3  My.  &  K.  587  ;  State,  ^^c.   v.  Campbell,  2  Rich. 

195;  Williams  r.  Owen,  13   Sim.  597.  Eq.  179. 

See   Sprigg  v.  Lyles,  2  Gill  &  J.  446  ;  »  4  John.   Ch.   130 ;  ace.   Bowker  r. 

Ryan   v.   Shawneetown,    14   Illin.    20;  Bull,  1  Smi.  (New)  34. 

Galium  V.   Brancli,    &c.    23  Ala.  797 ;  *  See  Hodgson  v.  Shaw,  3  My.  &  K. 

Garwood  v.  Eldridge,  1  Green,  Ch.  145  :  183  ;  Norton  v.  Coons,  3  Dcnio,"  130. 


312  THE    LAW   OF   MORTGAGES.  [CH.  XIII. 

potential  equity ;  which,  though  it  may  be  asserted  by  the 
party  himself,  yet  cannot  bind  third  persons.  The  equity 
gives  to  the  surety  a  right  to  call  for  a  transfer  of  the  securi- 
ties, and  so  binds  those  securities,  into  whatever  hands  they 
may  come  with  notice  of  the  charge."  ^  And  it  is  now  held, 
that  the  right  of  subrogation,  though  originating  in  courts  of 
equity,  is  fully  recognized  as  a  legal  right ;  and  any  act  of 
the  creditor  which  interferes  with  that  right,  and  is  a  fraud 
upon  it,  in  law,  as  well  as  at  equity,  oper^es  to  discharge 
the  surety.^ 

33  a.  A  creditor  recovered  judgment  against  his  debtor, 
sold  his  goods  on  execution,  and  took  a  mortgage  to  secure 
the  payment.  A  surety  subsequently  paid  the  debt.  Held, 
the  surety  was  entitled  to  the  benefit  of  the  mortgage.^ 

33  b.  More  especially  is  a  surety  entitled  to  the  benefit  of 
an  accompanying  mortgage,  in  case  of  a  special  agreement 
to  that  effect. 

33  c.  A.  executed  a  mortgage  to  B.,  to  secure  a  debt,  and 
also  transferred  to  B.,  without  indorsement,  two  notes  on  a 
third  person,  which  notes  A.  guaranteed ;  B.,  at  the  same 
time,  by  a  defeasance,  stipulated  that  "  B.  should  not  call  on 
A.,  or  hold  him  liable,  until  the  insolvency  or  inability  to  pay 
of  the  obligors  was  ascertained  by  legal  process."  Held,  the 
deeds  must  be  construed  together,  and  the  mortgage  was  not 
to  be  enforced,  until  the  insolvency  and  inability  to  pay  of 
the  maker  of  the  notes.* 

33  d.  Held,  also,  that  collection  "  by  legal  process,"  referred 
only  to  a  judgment  and  execution  at  law,  and  that  the  party 
was  not  bound  to  resort  to  equity,  to  remove  any  impedi- 
ments to  a  satisfaction  of  a  judgment  and  execution  at  law, 
such  as  a  fraudulent  conveyance,  or  the  like.^ 

34.  A  surety  may  claim  the  benefit  of  the  mortgage,  as 
against  a  purchaser  of  the  land  from  the  mortgagor,  although 
he  satisfied  the  debt  after  having  notice  of  the  conveyance. 

1  Bowker  v.  Bull,  1  Sim.  (New)  34;  ^  Ottman  v.  Moak,  3  Sandf.  Ch.  431. 
see  Higfrin.s  v.  Frankis,  10  Jur.  328.  ^  Burton  v.  Wheeler,  7  Ired.  Eq.  217. 

2  La  Faree  v.  Ilertcr,  11  Barb.  1.59.  '"  Ibid. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,  ETC.  313 

Thus,  a  mortgage  being  made  to  secure  the  indorser  of  a 
note,  the  mortgagor  afterwards  conveyed  the  land  ;  the  in- 
dorser confessed  a  judgment  on  the  note,  at  the  same  time 
taking  other  security  from  the  maker,  which  proved  worth- 
less ;  the  indorser  satisfied  the  judgment  after  he  had  notice 
of  the  conveyance  from  the  mortgagor ;  and  the  judgment 
creditor  assigned  the  mortgage  to  the  indorser,  to  secure  his 
indemnity.  Held,  the  mortgage  was  still  in  force  for  the 
indorser's  benefit,  he  being  subrogated  to  the  rights  of  the 
mortgagee.^ 

34  a.  "Where  a  deed  is  executed  for  the  security  of  notes 
indorsed  by  different  individuals,  a  court  of  chancery,  at  the 
instance  of  any  of  the  indorsers,  will  compel  a  pro  rata  dis- 
tribution of  the  proceeds  of  the  trust  sale.^ 

35.  The  following  distinctions  have  been  laid  down  upon 
this  subject.  Where  one  executes  a  bond  with  surety,  and 
at  the  same  time  a  mortgage  to  secure  the  same  debt,  which 
the  surety  pays,  the  latter  shall  stand  in  the  place  of  the  cred- 
itor in  respect  to  the  mortgage.  So  if  there  be  only  one 
specialty,  namely,  the  mortgage  ;  because  there  the  payment 
does  not,  as  in  case  of  a  bond,  extinguish  the  security  without 
a  reconveyance  ;  there  is  something  to  assign  or  transfer. 
But  if  a  further  charge  is  afterwards  made  by  the  mortgagor, 
in  favor  of  the  same  mortgagee,  the  surety  cannot,  on  paying 
off  the  first  charge,  call  for  an  assignment  of  the  mortgage, 
without  redeeming  the  latter,  unless  a  right  of  redemption  is 
given  him.^ 

36.  The  doctrine  of  subrogation  does  not  apply,  where  the 
surety  guarantees  one  part  of  the  debt,  and  the  security  is 
given  for  another  part ;  nor,  it  seems,  when  the  security  is 
subsequently  given,  by  an  independent  transaction.  Nor  can 
the  surety  require  an  assignment  of  the  original  debt,  nor  of 


1  Gossin  r.  Brown,  1 1   Penn.  State,  ^  Copis  v.  Middleton,  1   Turn.  &  R. 

(lJones,)527.  231;  Hodgson  v.  Shaw,   3  Mv.  &  K. 

-  McDermott  v.  Bank,  &c.  9  Humph.  195  :  Williams  v.  Owen,  13  Siiii.  597. 
123. 

VOL.   I.  27 


314  THE   LAW   OF  MORTGAGES.  [CH.  XIII. 

an  instrument  which  becomes  void  by  payment  of  the  debt, 
as  in  case  of  a  joint  and  several  bond  by  principal  and  surety. 
Otherwise,  where  the  surety  has  executed  a  separate  obliga- 
tion, which  is  paid  by  him  or  from  his  estate.' 

37.  A  surety  for  a  debt,  secured  by  mortgage,  has  in  equity 
substantially  the  same  rights  in  reference  to  the  property, 
which  he  would  have  if  he  were  actually  a  party  to  the  mort- 
gage. 

38.  In  1827,  R.  &  J.  Bancroft  mortgaged  to  Root  &  Stow 
to  secure  a  note  to  Root,  and  two  others,  signed  by  them,  and 
Stow  as  surety.  In  1832,  the  first  note  being  unpaid,  a  writ 
of  entry  was  sued  out  against  the  mortgagors,  and  a  condi- 
tional judgment  recovered  and  execution  taken  out,  but  never 
delivered  to  an  officer,  nor  was  possession  ever  taken.  Stow, 
having  paid  the  notes  for  which  he  was  liable,  brought  an 
action  against  the  Bancrofts  for  the  amount  paid  by  him, 
recovered  judgment,  caused  the  equity  of  redemption  to  be 
sold  on  execution,  and  became  himself  the  purchaser.  The 
first  note  remaining  unpaid,  the  plaintiffs,  adrninistrators  of 
Root,  demanded  possession  of  the  land,  and  bring  this  suit, 
being  a  bill  in  equity  against  the  mortgagors  and  Stow, 
alleging  that  the  latter  held  his  moiety  of  the  legal  estate  in 
trust  to  secure  payment  of  the  first  notes,  and  was  bound  to 
account  with  the  plaintiffs  for  the  rents  and  profits.  Held, 
the  lands  should  be  held  by  the  plaintiffs,  according  to  their 
respective  equitable  rights ;  that  the  Court  had  jurisdiction  in 
equity,  both  because  the  original  mortgagees  were  trustees 
for  each  other  and  tenants  in  common,  and  because,  in  regard 
to  mortgaged  lands,  the  administrator  represents  the  intestate. 
"  On  the  face  of  the  mortgage  deed.  Stow  took  a  moiety  of 
the  real  estate,  but  having  no  beneficial  interest  in  the  con- 
dition, he  was  p?im(t  facie  trustee  of  such  moiety,  in  the  first 
instance,  for  Root.  Then,  if  Stow,  by  this  deed,  acquired 
any  right,  legal  or  equitable,  to  the  mortgaged  property,  as 
security  for  the  repayment  to  him  of  any  sums  which  he,  as 

1  Wade  V.  Coupe,  2  Sim.  l.->5  ;  1  Turn.  &.  R.  231. 


CH.  Xin.]  SUCCESSIVE  M(JfeTGAGES,   ETC.  315 

surety  on  the  two  notes,  might  be  held  to  pay  —  as  we  think 
he  did  —  his  condition  in  relation  to  Root  could  not  be  better 
than  that  of  a  second  mortgagee.  His  claim  must  be  sub- 
ordinate to  that  of  Root,  and  after  Root  had  been  paid  in 
full.  The  condition  was,  to  secure  to  Root  the  payment  of  ♦ 
all  the  notes.  It  was  only  after  the  mortgagors  had  failed  to 
pay  Root,  and  after  Stow,  as  surety,  had  been  obliged  to  pay 
Root,  that  Stow  had  any  claim  for  security,  or  any  equitable 
or  beneficial  interest.  If  the  name  of  Stow  had  not  been 
introduced  into  the  first  deed,  but  the  Bancrofts  had  made  a 
second  mortgage  to  Stow,  conditioned  to  indemnify  him 
against  his  suretyship  to  Root,  the  relation  of  Root  and  Stow 
would  have  been  nearly  similar;  the  claims  of  the  latter 
being  subordinate  to  those  of  the  former."  "  Being  tenants 
in  common,  no  entry  of  the  one,  under  a  purchase  of  the 
equity  of  redemption,  or  under  color  of  a  judgment  or  other- 
wise, would  be  deemed  an  ouster  of  the  other  ;  but,  as  between 
themselves,  the  entry  enures  to  the  benefit  of  both."  Decreed, 
accordingly,  that  an  account  be  taken  of  the  sum  due  on  the 
first  note  ;  upon  payment  of  which,  the  defendant.  Stow, 
should  hold  the  land  ;  but  unless  paid  within  some  short 
time,  to  be  fixed  by  the  Court,  the  plaintiffs  to  have  posses- 
sion.' 

39.  If,  by  the  creditor's  neglect,  the  benefit  of  some  of  the 
securities  is  lost,  the  surety  is  pro  tanto  discharged.-  {g) 

39  a.  A.,  as  principal,  and  B.,  as  surety,  executed  a  note     , 

1  Root  V.  Stow,  13  Jlet.  5,  9,  10.  "  Capcl  v.  Butler,  2  Sim.  &  S.  457. 


{g)  On  the  otlier  hand,  a  surety  may  lose  his  claim  on  the  principal,  by 
his  own  laches  in  relation  to  a  mortgage.  A.'s  land  was  sold  on  execution 
against  him  as  B.'s  surety,  and,  within  the  year  allowed  for  redemption,  A. 
mortgaged  the  land  to  Q.,  without  referring  to  the  sale.  C.  filed  a  bill  for 
foreclosure,  to  which  A.  and  B.  were  parties.  ^S^eitlier  party  answered,  and  the 
land  was  sold  under  a  decree.  Held,  A.'s  payment  was.  withdrawn  and  lost 
toB.by  A.'s  own  default,  and  therefore  A.'s  claim  on  B.  was  extinguished. 
Jarvis  v.  Whitman,  12  B.  Mon.  97. 


316  THE   LAW  bF  MORTGAGES.  [CH.  XIII. 

to  C.  After  the  note  fell  due,  A.  executed  a  deed  in  trust  to 
C,  with  authority  to  the  trustee  to  sell,  for  the  satisfaction  of 
this  debt,  after  six  months.  The  deed  was  made  without 
the  assent  of  B.  Held,  an  agreement  that  the  collection  of 
the  note  should  be  delayed  was  necessarily  implied,  being 
further  established  by  the  attending  circumstances  ;  and  the 
surety  was  discharged.' 

39  b.  On  the  other  hand,  it  has  been  held,  that  if  a  creditor 
accepts  from  the  principal  debtor  a  mortgage  to  secure  his 
debt,  which  mortgage  is  payable  at  a  day  subsequent  to  the 
maturity  of  the  debt,  he  does  not  thereby  give  time  to  the 
principal  upon  the  debt,  and  a  surety  for  the  debt  will  not  be 
discharged.  A  giving  time,  to  discharge  a  surety,  must 
operate  upon  the  debt  itself.^ 

40.  Where  the  mortgage  is  made  to  a  surety  by  way  of 
indemnity  for  his  liability,  and  the  promisee  by  delay  loses 
his  remedy  upon  the  note,  he  cannot  claim  the  benefit  of  the 
mortgage,  as  being  held  in  trust  for  him. 

41.  Two  persons,  one  as  principal,  the  other  as  surety, 
signed  a  note  in  consideration  of  a  loan  to  the  former,  who, 
at  the  same  time,  gave  a  mortgage  to  the  latter,  conditioned 
to  pay  the  note  and  indemnify  the  surety,  and  also  pay  a  debt 
of  his  own  to  the  surety  ;  but  the  mortgage  was  not  the 
inducernent  for  the  loan,  nor  was  it  made  at  the  request,  for 
the  benefit,  or  by  the  procurement  of  the  promisee.  The 
mortgagor  paid  the  interest  on  the  note  for  several  years,  but 
no  part  of  the  principal,  or  of  the  debt  due  from  him  to  the 
mortgagee,  and  afterwards  died  intestate  and  insolvent,  and 
no  administration  was  taken  upon  his  estate.  The  mort- 
gagee was  never  called  on  to  pay,  and  never  paid,  either  the 
interest  on  the  note,  or  any  part  of  the  principal,  and  the  note 
became  barred  by  the  statute  of  limitations.  The  mortgagee 
afterwards  transferred  his  interest  under  the  mortgage  for  a 
valuable  consideration,  secured  by  notes,  without  notice  to 
the  purchaser  or  knowledge  on  his  part  that  the  promisee 

'  Lear.  ])ozier,  10  Iluiiiph.  447.  -  U.  States  v.  Ilodgc,  6  IIow.  U.  S.  279. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,  ETC.  317 

claimed  any  interest  therein,  by  way  of  trust  or  equitable 
lien  or  otherwise ;  and  subsequent  conveyances  and  dispo- 
sitions of  the  mortgaged  premises  were  made  in  like  manner, 
without  knowledge  or  notice  of  any  such  claim.  The  prom- 
isee brings  a  bill  in  equity  against  the  mortgagee  and  the 
purchaser  under  him,  praying  that  the  mortgagee  might  be 
decreed  to  pay  or  assign  to  the  plaintiff,  as  the  equitable 
owner,  the  proceeds  of  the  sale  to  such  purchaser ;  and  the 
latteir  decreed  to  hold  the  premises  as  trustee  of  the  plaintiff, 
subject  to  his  equitable  lien,  and  as  security  for  the  payment 
of  his  note,  and  also  to  pay  the  plaintiff,  as  equitably  entitled 
thereto,  the  amount  due  from  the  purchaser  to  the  mortgagee 
for  the  premises.     Held,  this  bill  could  not  be  sustained.^ 

41  a.  Where  one  of  two  sureties  for  a  mortgage  debt  paid 
it,  and  took  an  assignment  of  the  mortgage  ;  held,  he  should 
be  allowed,  as  against  the  other,  a  commission  of  five  per 
cent,  on  the  value  of  the  property,  and  the  expenses  of  fore- 
closure and  sale.- 

42.  The  doctrine  of  subrogation  does  not  apply,  where  a 
party,  though  in  fact  a  mere  surety,  does  not  appear  as  such 
either  upon  the  note  or  the  mortgage.  (A) 

43.  The  defendants  executed  a  mortgage  to  the  plaintiff, 

1  Becket  v.  Snow,  1  Cush.  510.  -  Livingston  r.  Van  Rensselaer,  6  Wend.  63. 


(li)  After  the  recovery  of  a  judgment  against  principal  and  surety,  and  a 
levy  upon  the  property  of  the  principal,  the  creditor  took  a  bond  and  mort- 
gage from  the  principal,  for  the  amount  of  the  judgment,  and  in  absolute 
payment  thereof,  and  acknowledged  satisfaction  of  the  execution,  by  an 
indorsement  thereon,  and  afterwards  brought  an  action  upon  the  judgment. 
Peld,  the  suretyship  might  be  proved  by  evidence  aliunde;  and  was  a 
defence  to  the  action.  La  Farge  v.  Herter,  11  Barb.  159.  Also,  that  the 
plaintiff  could  not  prove  that  the  bond  and  mortgage  were  usurious.  Ibid. 
Had  the  plaintiff  attempted  to  foreclose,  and  the  mortgagor  set  up  the 
usury,  the  plaintiff  might  rely  upon  the  invalidity  of  the  bond  and  mortgage  ; 
but  his  remedy  on  the  judgment,  even  then,  would  only  be  revived  against 
the  mortgagor,  and  not  against  his  co-defendant.  Ibid. 
27* 


318  THE  LAW   OF  MORTGAGES.  [CH.  XIII. 

to  secure  a  joint  and  several  note,  one  of  them,  however,  being 
in  fact  only  a  surety  for  the  other.  The  principal  debtor 
afterwards  mortgaged  a  part  of  the  land,  and  the  mortgage 
was  assigned  to  the  plaintiff,  who  foreclosed  the  second  mort- 
gage. He  then  brings  this  bill  to  foreclose  the  first.  Held, 
the  surety  defendant  was  not  entitled,  as  he  claimed,  to  stand 
in  the  place  of  the  first  mortgagee,  and  hold  the  whole  prop- 
erty for  his  indemnity,  because  neither  the  record  of  the  Gist 
mortgage  nor  the  note  indicated  that  he  was  a  surety,  and 
the  plaintiff  stood  as  a  bond  fide  purchaser  of  that  mortgage 
without  notice.^ 

44.  Where  one  mortgages  land,  and  afterwards  gives  the 
mortgagee  collateral  security  for  the  debt,  a  purchaser  of  the 
land  from  the  mortgagor,  subject  to  the  mortgage,  cannot 
claim  the  benefit  of  such  security,  but  the  land  becomes  the 
primary  fund  for  payment  of  the  debt.^ 

45.  A  mortgagor  conveys  the  equity  of  redemption,  the 
purchaser  assuming  the  mortgage  debt.  The  latter  then 
conveys  it,  the  purchaser  from  him  also  assuming  such  debt. 
The  mortgagor  obtains  a  decree  in  equity  against  both  pur- 
chasers for  payment  of  the  debt,  and  to  save  him  harmless, 
and  the  first  purchaser  is  compelled  by  an  execution  to  pay 
it.  Held,  he  was  thereby  subrogated  to  the  mortgagee,  and, 
whether  the  securities  were  assigned  to  him  or  not,  might 
foreclose  the  mortgage."^ 

46.  A  subsequent  mortgagee,  as  well  as  a  surety,  may  in 
equity  claim  the  benefit  of  other  security  taken  by  the  first 
mortgagee.  And  where  a  mortgagee  takes  subsidiary 
security,  to  the  benefit  of  which  a  subsequent  mortgagee  is 
entitled,  and  there  is  likely  to  be  a  long  controversy,  a  decree 
will  be  made  for  the  immediate  satisfaction  of  the  first  mort- 
gage, instead  of  requiring  the  mortgagee  to  resort  to  the 
additional  security;  and  the  decree  will  at  the  same  time 
provide  for  the  second  mortgagee's  right  of  subrogation.^ 

1  Orvis  V.  Ncwoll,  17  Conn.  97.  *  King  v.  McVickar,  3    Sandf.  Ch. 

^  Brewer  v.  Staples,  3  Sandf.  Cli.  .'')79.         192. 
^  McLean  v.  Towle,  3  Sandf.  117. 


CH.  XIII.]  SUCCESSIVE  MORTGAGES,  ETC.  319 

47.  Where  a  mortgage  is  made  to  a  surety^  for  the  purpose 
of  indemnifying  him  against  his  liability  on  account  of  the 
mortgagor,  substantially  the  same  equitable  rules  are  applied 
as  in  the  case  above  referred  to,  of  a  mortgage  accompanied 
by  other  security.'  It  is  held,  that  such  a  mortgage  is,  in 
reality,  a  security  for  the  debt  itself ;  to  the  benefit  of  which 
the  creditor  is  entitled  ;  ^  more  especially  where  both  debtors 
become  insolvent."^  [i) 

48.  Where  a  mortgage  is  made  to  indemnify  a  surety 
upon  a  note,  proof  of  execution  and  registry  is  prima  facie 
evidence  of  title,  without  producing  the  note,  which  is  not 
presumed  to  be  in  possession  of  the  mortgagee.  The  bur- 
den of  proof  is  on  the  party,  who  denies  the  existence  of 
such  note.* 

48  a.  A  deed,  conditioned  to  become  void,  unless  a  cer- 
tain sum  is  paid  by  a  certain  day,  is  a  mortgage.^ 

48  b.  If  the  mortgagee  give  security  for  the  debt,  he  has 
the  burden  of  proving  payment.  K  payable  in  money  on  a 
certain  day,  he  must  prove  payment  on  that  day,  otherwise 
the  condition  is  broken,  and  the  estate  revests,  by  operation 
of  law,  without  formal  entry ."^ 

1  See  Holabird  v.  Burr,  17  Conn.  556  ;  Storer  v.  Herrington,  7  Ala.  142  ;  Dick 

Reinbard  r.  Bank,  &c.  6  B.  Monr.  252 ;  v.  Trulv,  1  S.  &  M.  Ch.  557. 

Miller  v.  Musselman,  6  Whart.  354.  *  Davis  v.  Mills,  18  Pick.  394. 

'^  Lewis  V.  De  Forest,  20  Conn.  427  ;  ^  Austin  v.  Dowuer,  25  Verm.  558. 

Stockard  v.  Stockard,  7  Ilumpli.  303.  «  lb. 

3  Moore  v.  Moberly,  7  B.  Men.  299  ; 


(i)  Where  a  mortgagee  assigns  the  mortgage  and  guarantees  the  debt, 
taking  other  security  for  his  own  indemnity,  the  general  rule  of  the  text  is 
applicable  in  favor  of  the  assignee,  that  where  a  surety  receives  collateral 
security,  the  principal  creditor  is  entitled  to  the  benefit  of  it ;  even  though 
the  assignee  did  not  originally  rely  upon  it  or  know  of  its  existence.  Curtis 
V.  Tyler,  9  Paige,  432.  It  has  been  held,  that  a  mortgage  given  by  a  guar- 
dian to  his  sureties,  conditioned  "  to  pay  over  to  the  ward  all  the  moneys  in 
the  hands  of  the  guardian,  as  such,  when  he  (the  ward)  should  arrive  of 
full  age,"  does  not  create  a  trust  in  favor  of  the  ward  ;  the  mortgagees  have 
the  legal  and  beneficial  interest  in  it,  and  may  use  it  as  their  own.  JNIiller 
V.  Wack,  Saxton,  204. 


320  THE   LAW    OP   MORTGAGES.  [CH.  XIII. 

49.  A  mortgage  to  secure  liabilities  incurred  for  the  mort- 
gagor's accommodation,  reciting  an  accompanying  bond, 
which,  in  fact,  was  never  delivered,  is  valid.^  But  not  a 
mortgage,  reciting  that  the  mortgagee  is  liable  for  the  mort- 
gagor, when,  in  fact,  the  former  has  made  a  mere  verbal 
promise,  not  binding  in  law,  as  against  creditors  of  the  mort- 
gagor.2 

50.  Where  a  mortgage  is  made  to  secure  an  accommoda- 
tion indorser,  the  creditor  cannot  claim  the  benefit  of  it  till 
the  indorser's  liability  is  fixed ;  and,  if  the  latter  is  dis- 
charged by  his  laches,  he  loses  all  title  to  the  property .^  (j) 
Nor  can  a  surety  foreclose  a  mortgage  made  to  him  till  he 
has  paid  the  debt.*  But  if  there  is  a  power  of  sale,  when- 
ever a  judgment  on  the  debt  is  rendered  against  the  surety, 
and  before  maturity  of  the  debt  he  purchases  or  pays  it ; 
equity  will  enforce  the  deed  for  his  benefit,  to  the  extent  of 
his  disbursement.^  So  it  is  held,  that  an  accommodation 
indorser  may  discharge  a  mortgage  made  for  his  indemnity, 
at  any  time  before  his  liability  becomes  absolute.^ 

50  a.  Where  a  surety  obtains  a  mortgage  from  the  princi- 
pal debtor,  to  secure  him  against  his  liability,  and  also  to 
secure  a  debt  due  to  himself,  the  creditor  is  entitled  to  the 
benefit  of  the  mortgage,  and  to  be  paid  out  of  the  first  pro- 
ceeds, in  preference  to  the  surety  himself,  or  his  assignees 
under  an  assignment  for  the  benefit  of  his  creditors.''' 


1  Goodhue  V.  Berrien,  2  Sandf.  Ch.  *  Shcpnrd  v.  Shcpard,  6  Conn.  37. 
630.  ^  Gralmm  v.  King,  15  Ala.  5G3. 

^  Lake  v.  Brutton,  23  Eng.  L.  and  Eq.  '^  Tilfonl  v.  James,  7  B.  Mon.  336. 
628.  "^  Ten  Eyck  v.  Holmes,  3  Sandf.  Ch. 

8  Tilford  V.  James,  7  B.  Mon.  336.  428. 


(/)  The  maker  of  a  note  gave  to  the  indorser  a  judgment  bond  for  secu- 
rity. 'J'iie  note  was  protested,  but  no  notice  given  to  the  indorser,  who, 
however,  in  consideration  of  a  release  from  his  liability,  assigned  the  judg- 
ment to  the  holder  of  the  note.  Held,  the  waiver  of  want  of  notice  defeated 
the  claim  of  a  subsequent  mortgagee.  Phillips  v.  Thompson,  2  Johns.  Ch. 
418. 


CII.  XIII.]  SUCCESSIVE  MORTGAGES,  ETC.  321 

50  b.  A.  made  a  mortgage  to  B.,  conditioned  to  pay  a 
debt  due  him,  and  also  certain  other  debts  on  which  B.  was 
liable  as  surety  of  A.,  in  some  cases,  alone,  and  in  others, 
jointly  with  others.  A.  also  assigned  to  B.  certain  personal 
securities  for  the  same  object.  Held,  that  B.  held  the  mort- 
gage and  securities  for  the  benefit  of  all  such  creditors  and 
his  joint  sureties  ;  that  the  fund  arising  from  them  should  be 
applied  pro  rata  to  all  such  debts,  and,  on  a  proceeding  for 
contribution  by  B.  against  his  co-sureties,  that  they  were 
liable  only  for  their  shares  of  the  deficit  after  such  pro  rata 
application  of  the  fund  to  all  the  debts,  including  the  debt 
due  to  B.i 

51.  A  mortgage  was  given,  conditioned  to  pay  a  debt  due 
the  mortgagee,  and  other  debts  for  which  he  was  liable  as 
surety  for  the  mortgagor,  in  some  cases  separately,  in  others 
jointly  with  other  persons.  Held,  the  mortgage  stood  as 
security  for  all  the  debts,  and,  upon  a  sale  of  the  property, 
the  proceeds  should  be  distributed  pro  rata  among  the  whole, 
the  mortgagee's  included.^ 

52.  A  mortgage  was  made  to  indemnify  the  mortgagee  for 
his  liability  as  surety  upon  several  notes.  Some  of  the  notes 
being  barred  by  the  statute  of  limitations,  the  mortgagor  be- 
came an  insolvent  debtor  under  the  insolvent  laws  of  Mas- 
sachusetts. Held,  the  mortgagee  might  apply  the  property 
first  to  the  notes  still  in  force,  and  the  rest  should  be  distrib- 
uted pro  ratd  among  the  holders  of  the  others,  who  had  an 
equitable  lien  on  the  fund  ;  but  that  he  could  not  pay  some 
of  the  outlawed  notes  from  the  property  to  the  exclusion  of 
others,  the  latter  having  an  equal  equitable  claim  with  the 
former.  Also,  that  the  property  was  subject  to  this  equita- 
ble lien,  although  the  mortgage  had  been  foreclosed,  and  as 
against  attaching  creditors  or  grantees  of  the  mortgagee,  or 
an  assignment  under  the  insolvent  law.^ 

53.  A  mortgage  having  been  made  to  indemnify  a  surety 


1  Moore  v.  Moberlv,  7  B.  Mon.  299.  ^  Eastman  v.  Foster,  8  Met.  19. 

2  lb. 


822  THE   LAW   OF   MORTaAGES.  [CH.  XIII. 

for  the  mortgagor  upon  various'  debts ;  by  an  arrangement 
between  one  of  the  creditors,  the  mortgagor  and  mortgagee, 
the  mortgagor  paid  a  part  of  the  debts,  and  the  creditor  the 
rest,  the  latter  taking  an  assignment  of  the  mortgage,  to  hold 
as  security  for  his  own  debt.  Held,  as  against  a  judgment 
creditor  of  the  mortgagor,  prior  to  the  assignment,  the  as- 
signee could  enforce  the  mortgage  only  for  the  amount  paid 
to  procure  it.' 

54.  Mortgage  to  indemnify  an  indorser ;  with  a  provision, 
that  if  the  mortgagor  fail  in  payment  of  the  note,  whoever 
might  be  the  holder,  the  mortgagee,  upon  affidavit  of  non- 
payment and  the  amount  due,  might  foreclose,  &c.  The 
mortgage  was  afterwards  transferred  without  recourse  to 
the  indorsee  of  the  note.  Held,  the  mortgage  was  valid  in 
the  indorsee's  hands,  and  might  be  foreclosed  by  him,  and 
the  property  subjected  to  payment  of  the  note.^ 

55.  Such  mortgage  creates  a  trust  for  the  benefit  of  the 
indorsee  ;  and,  if  the  mortgage  is  not  assigned,  the  mortga- 
gee may  be  compelled  to  allow  the  use  of  his  name  in  a  suit 
to  enforce  payment  of  the  note.^ 

55  a.  Where  judgment  is  recovered  against  both  principal 
and 'surety,  the  former  having  given  a  mortgage  of  indemnity 
to  the  latter,  the  surety  cannot  claim  priority  of  older  judg- 
ments against  the  principal  alone,  in  reference  to  a  lien  upon 
the  land,  by  reason  of  his  mortgage.  He  can  claim  only 
upon  the  mortgage  directly.* 

55  b.  If  the  surety,  believing  that  his  mortgage  gives  him 
such  priority  over  older  judgments,  causes  the  execution 
against  himself  and  the  principal  to  be  levied  on  the  mort- 
gaged land,  and  become,  himself  the  purchaser ;  he  may 
afterwards  foreclose  in  equity,  especially  after  stipulating 
that  the  land  shall  sell  for  as  much  as  the  execution 
price.^ 

56.  Where  a  mortgage  is  made  to  indemnify  the  mortga- 

1  Yclverton  i'.  Slicldcn,  2  Sandf.  CIi.         »  Ih. 
481.  *  Stover  ;;.  Ilcrriiigton,  7  Ala.  112. 

-  Stewart  v.  Preston,  1  Branch,  10.  ^  lb. 


CH.   XIII.]  SUCCESSIVE   MORTGAGES,  ETC  323 

gee  for  his  liability  upon  subsequent  indorsements  on  ac- 
count of  the  mortgagor,  judgments  having  been  recovered 
against  the  indorser  upon  his  indorsements  ;  if  others,  having 
a  lien  upon  the  land,  bring  a  bill  in  equity,  for  the  purpose 
of  having  it  sold,  and  all  parties  in  interest  are  before  the 
Court ;  the  mortgagee  may  require  that  the  proceeds  be  ap- 
plied to  such  judgments,  though  he  has  not  paid  themJ 

56  a.  Where  a  conveyance  is  made  to  a  trustee,  to  indem- 
nify the  surety  of  the  grantor,  vi^ho,  after  paying  the  debt, 
takes  a  conveyance  from  the  trustee  in  satisfaction  of  the 
debt,  under  an  order  from  the  heirs  of  the  grantor,  made  for 
"  the  safety  of  the  trustee,"  and  under  an  impression  that 
they  "  have  no  interest  in  the  premises  ;"  the  equitable  rights 
of  the  heirs  are  not  thereby  prejudiced.^^  (A-) 

56  b.  Where  one  of  several  sureties  receives  a  mortgage  as 
indemnity,  and  pays  the  debt,  unless  he  use  reasonable  dili- 
gence to  appropriate  the  mortgage  to  a  repayment,  he  can- 
not compel  contribution.^ 

56  c.  Where  a  mortgage  is  made  to  a  surety,  to  indemnify 
him  as  surety  on  several  debts,  on  some  of  which  there  are 
co-sureties,  and  the  mortgage  proves  insufficient  to  satisfy 
all  the  debts,  it  should  be  applied  to  them  pro  rata^  * 

56  d.  Where  one  of  several  sureties  is  secured  by  mort- 
gage, he  is  not  bound  to  enforce  his  mortgage,  before  he 
pays  the  debt,  or  has  reason  to  apprehend  that  he  must  pay 

1  Kramer  v.  Bank,  &c.  15  Ohio,  253.  »  Goodloe  v.  Clay,  G  B.  Mon.  236. 

-  Invin  L\  Longvortli,  20  Oliio,  561.  *  lb. 


(Jc)  If  the  trustee,  in  such  case,  convey  to  the  surety,  in  satisfaction  of  the 
debt  of  the  grantor,  the  surety,  as  to  minor  heirs  of  the  grantor,  takes  the 
premises  charged  Avith  the  trust ;  and  the  original  trustee  will  be  responsible 
for  a  breach  of  the  trust  by  his  grantee.  Irwin's  Heirs  v.  Longworth,  20 
Ohio,  581.  In  such  case,  an  order  to  the  original  trustee  to  convey  to  the 
surety,  executed  by  the  heirs,  for  the  safety  of  the  original  trustee,  is  not  a 
surrender  of  the  equity  of  the  heirs  in  the  premises  so  conveyed,  unless  the 
order  contain  words  which  expressly,  or  by  inference,  surrender  the  ccjuity. 
Ibid. 


324  THE   LAW   OF  MORTGAGES.  [CH.  XIII. 

it,  unless  the  mortgagor  is  wasting  the  estate ;  in  which 
case,  if  he  fails  to  do  so,  he  is  chargeable  to  his  co-sureties, 
with  the  fair  value  of  the  property  at  a  coercive  sale.^ 

56  e.  Where  one  of  two  sureties  receives  property  by  deed 
of  trust,  to  indemnify  him,  and  the  trustee  sells  the  property 
by  direction  of  the  surety,  but  fails  to  collect  the  money,  he 
is  not  entitled  to  contribution.'^ 

56/.  Where  property  was  mortgaged  to  two  sureties  of 
the  mortgagor  to  secure  them,  and,  after  his  default  and 
theu'  payment  of  his  debt,  was  sold  and  purchased  for  the 
joint  benefit  of  the  mortgagees,  and  one  of  them  sold  all  his 
interest  in  the  purchase  to  a  junior  mortgagee,  with  the 
agreement  that  if  he  was  entitled  to  the  whole,  it  passed  by 
the  sale,  and  if  he  was^  entitled  to  only  half,  that  part  passed : 
the  co-mortgagee  having  died ;  held,  on  a  bill  to  which  all 
interested  were  parties,  that  one  half  of  the  mortgaged  prem- 
ises purchased  for  the  joint  benefit  of  the  mortgagees,  should 
be  .decreed  to  the  heirs  of  the  deceased  mortgagee,  and,  as 
the  original  bill  by  the  joint  mortgagees  for  foreclosure  was 
not  yet  finally  determined,  this  decree  was  entered  on  that 
bilL3 

56  g.  "A.  became  security  for  B.,  for  a  separate  debt  due 
from  B.,  and  for  B.  and  C,  for  other  debts  jointly  due  from 
both.  B.  executed  a  note  and  mortgage  to  A.,  to  secure  him 
for  the  whole  of  the  separate  debt,  and  for  B.'s  ratable  pro- 
portion of  the  joint  debts.  It  was,  at  the  same  time,  agreed, 
that,  when  B.  had  paid  the  whole  of  the  first  debt,  and  a 
moiety  of  each  of  the  others,  the  note  and  mortgage  should 
be  cancelled.  B.  having  paid  the  amount  thus  stipulated  to 
be  paid  by  him  on  all  the  debts,  held,  A.  could  not  avail 
himself  of  the  note  and  mortgage  as  security  against  the 
remainder,  and  a  bill  by  him  to  foreclose  was  dismissed  with 
costs.'* 


1  Teeter  r.  Pierce,  1 1  B.  Mon.  399.  =^  Stemmons  v.  Duncan,  9  B.  Mon. 

'•^  Cliilton  V.  Cliapinan,  13  Mis.  470.         3.51. 

■1  Newell  V.  Ilurlljurt,  2  Verm.  35. 


Cir.  XIII.]  SUCCESSIVE  MORTGAGES,  ETC.  325 

56  h.  A  mortgage  was  taken  from  A.  to  indemnify  B., 
who  had  given  his  bond  for  a  loan  to  A.,  in  which  bond  C. 
was  bound  for  B.  The  mortgage  was  afterwards  assigned 
absolutely  by  B.  to  C,  the  same  to  be  at  C.'s  risk,  and  the 
debt  to  be  collected  at  his  expense.  Held,  that  C.  might 
recover  on  the  mortgage,  not  only  the  debt  and  interest  for 
which  he  was  bound,  but  the  reasonable  expenses  of  col- 
lection  ;  and  that  the  Court  should  have  decided  the  amount 
recoverable  under  the  assignment,  as  matter  of  law  arising 
on  the  assignment.^ 

56  i.  A.,  being  the  principal  debtor  on  a  note,  assigned  to 
his  sureties  thereon  a  bond  and  mortgage,  with  the  condition 
that  they  should  pay  the  note,  and  afterwards  assigned  other 
property  to  trustees,  to  sell  the  same,  and  apply  the  proceeds 
to  the  payment  of  the  note,  and  the  residue,  if  any,  to  other 
certain  creditors  named.  Upon  a  creditor's  bill,  afterwards 
filed  against  A.,  held,  the  complainants  could  not  insist  that 
the  note  should  be  paid  out  of  the  fund  in  the  hands  of  the 
trustees,  so  as  to  give  them  the  benefit  of  the  bond  and 
mortgage ;  but  the  bond  and  mortgage  were  the  primary 
fund  for  the  payment  of  the  note,  which  the  holders  were 
bound  first  to  exhaust,  before  resorting  to  the  fund  in  the 
hands  of  the  trustees,  so  as  to  give  the  other  creditors, 
mentioned  in  the  assignment  to  trustees,  the  benefit  of 
that  fund,  the  complainant's  equity  being  subsequent  to 
theirs.2 

56  j.  Where  there  are  more  sureties  than  one,  to  w^hom  a 
mortgage  is  given  for  indemnity,  one  cannot  buy  the  land 
from  a  prior  mortgagee,  who  has  bought  it  under  a  decree 
enforcing  his  mortgage,  to  the  prejudice  of  the  other  sureties; 
but  they  shall  share  in  the  benefit  of  such  purchase.'^ 

57.  Somewhat  analogous  to  the  case  of  successive  mort- 
gages, in  so  far  as  it  involves  the  change  of  a  single  liability 


1  Knox  V.  Moatz,  15  Penn.  74.  -^  Hilton  v.  Crist,  5  Dana,  384. 

■■^  Beslcy  r.  Lawrence,  1 1"  IJaige,  581 . 

VOL.  I.  28 


326  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

and  charge,  into  several  distinct  burdens  upon  the  same 
property,  is  that  of  a  conveyance  by  the  mortgagor  of  a  por- 
tion of  the  land  mortgaged,  retaining  the  remainder ;  or  the 
conveyance  of  different  portions,  included  in  one  mortgage, 
to  successive  purchasers ;  and  the  apportionment  of  the 
mortgage  debt  upon  such  parcels,  respectively.  The  gen- 
eral rule  upon  this  subject  is,  that  if  the  mortgagor  conveys  a 
part  of  the  land,  retaining  the  rest,  the  part  retained  is  pri- 
marily liable  for  the  mortgage  debt.  If  he  retains  a  part, 
and  conveys  the  rest  to  different  purchasers,  the  part  retained 
is  primarily  liable,  and  the  portions  conveyed  are  liable  in 
the  inverse  order  of  their  alienation.  And  the  latter  branch 
of  the  rule  applies,  where  the  whole  land  is  successively  con- 
veyed.i  The  rule  is  said  to  apply  to  different  mortgages  of 
different  dates ;  and  to  be  so  administered  as  to  throw  a 
general  lien  upon  such  particular  parcel,  as  will  give  a  mort- 
gagee the  benefit  of  his  priority  either  upon  the  whole  or  a 
part  of  the  land.^  As  between  the  purchasers  themselves,  it 
is  held,  that  a  mortgage  binds  every  part  of  the  land  it 
covers,  and  each  spot  is  subject  to  its  operation  ;  and,  where 
it  is  made  to  bear  on  purchasers  of  different  parcels  from  the 
mortgagor,  they  are  bound  to  contribute  only  in  proportion 
to  the  value  of  the  share  that  each  holds  ;  and  the  same  rule 
applies  to  the  equitable  liens,  acquired  by  proceedings  and 
attachments  in  chancery.^ 

57  a.  The  doctrine  above  stated  is  of  ancient  origin.  In 
Harherfs  case,^  it  is  laid  down,  that  if  one  is  seized  of  three 
acres  under  an  incumbrance,  and  enfeoffs  A.  of  one  acre,  and 
B.  of  another,  and  the  third  acre  descends  to  the  heir,  who 

1  Ferguson  v.  Kimball,  3  Barb.  Ch.  lis,   Saxt.    413;   Britton  v.  Updike,   2 

G16;  Cusliinf;  r.  Aycr,  2'y  Maine,  383  ;  Ovccn,   Cli.    125;    Wikoff  r.  Davis,    2 

Kellogg  I'.  Hand,   11   I'aige,  59;  Cum-  Green,    Cli.    224;   Porter    v.    Scahor, 

ming  f.  Cumniiiig,  3  JCeliy,  ((ia.)  400  ;  2  Koot,    146;  Mayo   i'.    Tompkins,    6 

Knickcrbaeker   v.    J5outvvell,   2    Sandf.  Munf.  520 ;   Black  v.  Morse,  3   Ilalst. 

Ch.  319;  llenklc  ?;.  Allstadt,  4   Gratt.  Cli.    509;    Howard,   &c.   v.    Ilalscy,   4 

284;  Skecl  v.  Sprakcr,  8   Paige,  182;  Sandf.  505. 

Allen  V.  Clark,  17  I'iek.  47  ;  Clowes  u.  2  Sehryver  v.  Teller,  9  Paige.  173. 

Dickenson,  5  Johns.  Cli.  240  ;  Scluun-  ?>.  »  Beall  i\  Barclay,  10  B.  Mon.  201. 

Bobbins,   1    Koot,  400;  Hlieperd  y.  Ad-  ''3  Co."  11. 
ams,  32  Maine,  G3;  .Sliannon  v.  Marscl- 


CH.   XIII.]  SUCCESSIVE   MORTGAGES,  ETC  §27 

discharges  the  incumbrance,  he  shall  not  have  contribution, 
"  for  he  sits  in  the  seat  of  his  ancestor." 

57  b.  In  Massachusetts,  the  doctrine  is  thus  laid  down  :  — 
"  It  is  a  well  settled  legal  doctrine,  that  where  lands  are 
charged  with  a  burden,  that  burden  should  be  shared  equally. 
Courts  of  equity  will  always  enforce  this  rule,  either  upon 
the  principle  of  contribution,  or  in  some  other  mode  that  wiU 
do  substantial  justice  between  the  parties.  It  is  an  equally 
well  settled  rule,  that  if  one  party  has  deprived  the  other  of 
his  right  to  enforce  a  contribution,  or,  what  is  here  deemed 
equivalent,  the  right  of  substitution  in  the  place  of  the  mort- 
gage, he  will  be  excluded  from  so  much  of  his  demand  as 
the  party  might  have  enforced  but  for  the  interference  of  him 
who  has  thus  discharged  a  portion  of  the  lien."  i 

58.  It  has  been  held,  that  where  a  purchaser  by  parol  of 
part  of  a  mortgaged  tract  pays  the  mortgage  to  prevent  a 
sale,  he  is  entitled  to  be  subrogated  to  the  mortgage  and  the 
judgment  thereon.^ 

59.  Where  the  purchaser  of  mortgaged  land  assumes  in 
the  deed,  or  covenants,  to  pay  the  mortgage,  especially  if  the 
amount  is  deducted  from  the  price,  he  is  liable  to  pay  the 
amount  of  it  to  the  grantor,  as  part  of  the  price  ;  and,  as  be- 
tween them,  the  mortgagor  becomes  a  surety  in  respect  to 
the   mortgage ;  (/)    and   at   maturity  the   purchaser   may  be 

1  Per  Dewey,  J.,  Paikman  v.  Welch,         ~  Champlin  i'.  Williams,  9  Barr,  341. 
19  Pick.  238. 


(I)  In  reference  to  the  mortgagee,  the  mortgagor  still  remains  the  prin- 
cipal debtor.  Marsh  v.  Pike,  1  Sandf  Ch.  210;  10  Paige,  595.  Although 
the  language  is  used  "  on  condition  that  said,  &c.,  shall  assume  and  pay  said 
note,"  &c. ;  yet  the  grantor,  after  paying  the  interest,  may  recover  it  from 
the  grantee.  lie  is  not  bound  to  claim  a  forfeiture  of  the  land  ;  although  he 
might  do  so  at  his  election.  And  the  promise  is  not  void,  as  being  within 
the  statute  of  frauds  —  being  a  promise  to  pay  the  debt  of  another,  or  con- 
cerning real  estate.  Although  the  consideration  is  a  conveyance  of  land,  it 
is  past  and  executed,  and  the  promise  is  a  simple  obligation  to  pay  money. 
And  the  substance  of  the  contract  is  with  the  plaintiff,  on  a  consideration 


328  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

compelled  to  pay  it.  So  a  subsequent  purchaser  from  him. 
As  between  him  and  the  vendor  he  makes  the  debt  his  own. 
But,  the  vendor  still  remaining  liable  to  the  mortgagee,  the 
relationship  of  principal  and  surety  arises  between  the  ven- 
dor and  purchaser,  and  may  be  illustrated  by  the  analogous 
case  of  an  undertaking  by  one  partner  to  pay  the  debts  of  a 
dissolved  partnership.  Such  debts  are  thereafter  regarded  in 
equity,  between  the  partners,  as  the  debts  of  the  undertaking 
party ;  and  the  continuing  liability  of  the  others  is,  in  the 
same  point  of  view,  a  liability  for  the  debt  of  another.^  So, 
also,  a  second  grantee,  taking  the  land  from  such  purchaser, 
and  the  holder  of  the  other  part  of  the  land,  may  claim  an 
assignment  of  the  mortgage  to  protect  his  rights.^  But  one 
purchasing  subject  to  a  mortgage  may  still  make  any  legal 
defence  to  a  suit  thereupon.^ 

1  Blyer  v.  Monholland,  2  Sandf.  Cha.  drews  v.  Wolcott,  16  Barb.  21  ;  Marsh 

478  ;  Ferris  v.  Crawford,  2  Denio,  595  ;  v.  Pike,  1  Sandf.  CIi.  210 ;  10  Paige,  595. 

Morris  v.  Oakford,   9  Barr,  499,  500;  ^  Halsey  v.  Reed,  9  Paige,  446. 

Flagg  V.  Tliurber,  14  Barb.  196  ;  An-  '^  Russell  v.  Kenney,  1  Sandf.  Ch.  34. 

moving  from  him,  to  pay  his  debt,  although  the  performance  of  it  would  sat- 
isfy the  debt  of  another.  Moreover,  implied  promises  are  not  within  the 
statute.  Pike  v.  Brown,  7  Cush.  133.  If  the  grantee  signs  the  deed,  he  is 
liable  in  covenant ;  otherwise,  in  assumpsit.  Rawson  v.  Copeland,  2  Sandf. 
Ch.  251.  The  grantor  may  enforce  the  liability,'  without  actually  paying 
the  mortgage  debt  himself.     Ibid. 

It  has  been  recently  held  in  Massachusetts,  that  the  principle  of  law,  by 
which,  in  some  cases,  an  action  has  been  maintained  by  one  party,  upon  a 
simple  contract  made  by  the  defendant  with  another  to  do  an  act  for  the 
benefit  of  the  plaintiff,  does  not  apply  in  case  of  a  promise  made  to  the  ven- 
dor by  the  purchaser  of  an  equity  of  redemption,  to  assume  and  cancel  the 
raortgasre  with  the  mortfra^e  note ;  and  that  the  mortKaffee  cannot  maintain 
an  action  upon  such  promise.  ]\Ir.  Justice  JMetcalf  reviews  the  cases  in 
which  such  a  principle  has  been  sanctioned  by  the  Courts,  and  comes  to  the 
conclusion,  that  they  constitute  exceptions  to  the  general  rule  on  the  sub- 
ject, none  of  which  embraced  the  case  before  the  Court.  McUen  v.  Whip- 
ple, 1  Gray,  317.  More  especially  docs  this  rule  apply,  where  it  docs  not 
appear  that  the  grantor  is  personally  liable  for  the  mortgage  debt.  King  v. 
Whitely,  10  Paige,  405  ;  Stevenson  v.  Black,  Saxt.  338  ;  Tichenor  v.  Dodd, 
3  Green,  Ch.  454. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,  ETC.  329 

59  a.  Where  that  portion  of  the  land  conveyed  by  the 
mortgagor  is  to  be  only  secondarily  liable  for  the  mortgage 
debt,  the  relation  of  principal  and  surety  is  reversed  from 
that  above  stated.  Thus,  A.  purchased  of  B.  one  of  several 
parcels  of  mortgaged  land.  B.  became  insolvent,  and  made 
an  assignment  of  his  property,  in  trust  for  the  payment  of 
his  debts,  the  lands  assigned  being  first  chargeable  with  the 
payment  of  the  mortgage,  but  imperfect  security  therefor, 
and  A.'s  parcel  being  chargeable,  in  case  the  land  assigned 
should  prove  insufficient.  Held,  A.  was,  in  legal  effect, 
surety  for  the  land  assigned ;  that,  when  sold  upon  fore- 
closure of  the  mortgage,  it  should  satisfy  the  mortgage,  and 
that  he  had  a  right  to  see  that  the  principal  fund  was  not 
impah-ed  by  any  waste  on  the  part  of  the  assignees.^ 

60.  In  New  York,  it  is  held,  that  if  a  deficiency  exists,  on 
foreclosure,  the  mortgagee  may  recover  it  from  the  grantee 
of  a  part  of  the  land  mortgaged.^ 

61.  Where  a  mortgagor  conveys  distinct  portions  of  the 
land  to  two  successive  purchasers,  the  last  of  whom  reserves 
enough  of  the  price  to  pay  the  mortgage,  and  expressly  for 
that  pm-pose  ;  and  such  second  purchaser  accordingly  pays 
the  mortgage  debt,  taking  a  quitclaim  deed  fi:om  the  mort- 
gagee ;  this  is  a  redemption  of  the  mortgage  as  to  the  first 
purchaser.'^ 

61  a.  Where  a  part  of  land  mortgaged  is  sold,  and  an 
agreement  to  pay  the  mortgage  contained  in  the  deed,  a 
purchaser  from  such  grantee  is  chargeable  with  notice  of  the 
agreement,  and  takes  subject  thereto  ;  and  if  such  purchaser 
buy  the  original  mortgage,  it  is  thereby  discharged.^ 

62.  It  is  said,  that  a  mortgagee,  with  notice  of  subsequent 
liens,  has  no  right  to  release  his  mortgage,  to  the  prejudice 
of  such  liens.^  Upon  this  principle  it  has  been  held,  that  if 
the  mortgagee,  for  a  consideration,  releases  that  portion  of 


1  Johnson  v.  White,  11  Barb.  194.  *  Russell  v.  Pistor,  3  Seld.  171. 

2  Halscy  r.  Ilecd,  9  Paif,'c,  446.  &  jNIcLean  v.  Lafayette,  &c.  3  McL. 
8  Gushing  v.  Ayer,  25  Maine,  383.  587. 

28* 


330  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

the  land  which  was  primarily  liable  for  the  debt,  he  thereby 
discharges  the  other  portion.^     So,  if  two  estates  be  mort- 
gaged in  one  deed,  and  transferred  to  different  persons,  and 
one  released  by  the  mortgagee  ;  the  owner  of  the  other,  on 
redeeming,  cannot  compel   contribution,  but  may  claim  a 
deduction  from  the  debt  in  proportion  to  the  value  of  the 
parcel  released.^     But,  on  the  other  hand,  it  is  said,  the  rule 
of  charging  different  parcels  of  land,  subject  to  a  common 
incumbrance,  in  the  inverse   order  of  their  alienation,  is  a 
mere  rule  of  equity ;  and,  as  a  release  to  a  subsequent  pur- 
chaser, of  one  parcel  of  the  land,  is  not  a  technical  discharge 
of  the  lands  previously  conveyed  from  the  incumbrance,  it 
is  not  an  equitable  release,  except  where  it  ought  so  to  oper- 
ate upon  equitable  principles.'^     Thus,  where  a  purchaser  of 
part  of  land  mortgaged  paid  the  price  to  the  mortgagee, 
taking  a  release  of  his  land  from  the  mortgage  ;  held,  that 
parts  of  the  land  previously  sold  were  not  discharged.* 

63.  More  especially  where  a  mortgagee,  whose  mortgage 
covers  two  parcels  of  land,  subsequently  conveyed  by  the 
mortgagor  to  different  purchasers,  releases  the  parcel  last 
conveyed  from  the  mortgage,  without  any  notice,  actual  or 
constructive,  that  the  other  parcel  had  been  previously  sold ; 
he  does  not  thereby  discharge  the  parcel  not  released.^ 

64.  If  the  purchaser  of  a  portion  of  the  land  agrees  with 
the  mortgagor,  that  this  portion  shall  remain  subject  to  the 
lien,  and  this  agreement  makes  a  part  of  the  consideration  ; 
equity  will  not  decree  that  the  portion  retained  by  the  mort- 
gagor shall  be  first  sold ;  even  in  favor  of  a  purchaser  from 
the  first  purchaser,  having  notice  of  the  agreement.^ 

65.  The  owner  of  mortgaged  property  conveyed  a  portion 
of  it,  received  the  price,  and  afterwards  sold  the  remainder 
for  the  full  value  to  another  person,  under  an  agreement  that 


1  Tivxton  f.lliiriier,  11  rcnn.(l  Jones)  *  l':vcrtson  v.  Ogdni,  8  Taigc,  275. 

.312.     But  .sec   llolin.iii    v.    Hank,   &e.  ^  8  Tiiif^'e,  277;    Stuyvesant  v.   Ilall, 

12  Ala.  .'!G9.  2  15arh.  Clia.  l.^l. 

'■^  Parkrnan  v.  Wckli,  19  Piek.  2.38.  ''  Kngle  v.  Haines,  1  Ilalst.  Cha.  186; 

■*  Tatty  V.  Tease,  8  Taige,  277.  Iluss  v.  Ilaincs,  lb.  632. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  331 

the  purchase-money  should  all  be  applied  upon  the  mort- 
gage, and  the  land  released  therefrom.  The  mortgagee 
accordingly  released  it.  Held,  such  release  did  not  dis- 
charge the  portion  first  conveyed  from  the  lien  of  the  mort- 
gage for  the  balance  of  the  debt.^ 

66.  A  mortgage  was  made  of  twenty-seven  acres,  and 
another  of  ten  acres,  part  of  the  land  previously  mortgaged. 
The  latter  was  sold  by  the  second  mortgagee,  and  released 
by  the  first.  The  mortgagor  then  sold  three  acres  of  the  re- 
maining seventeen,  by  a  warranty  deed.  Held,  an  assignee 
of  the  first  mortgage  could  not  sell  the  three  acres,  until  he 
had  sold  the  fourteen  not  released,  and  then  only  for  the 
deficiency.^ 

67.  One  mortgage  was  made  upon  two  lots,  a  second,  to 
another  person,  upon  one,  and  a  third,  to  another  person, 
upon  the  other.  Held,  the  first  mortgagee  could  not  be  com- 
pelled by  the  second  to  resort  first  to  the  lot  mortgaged 
to  the  thkd ;  but  should  be  paid  from  the  proceeds  of  both 
lots,  in  proportion  to  the  amount  produced  by  each.^ 

67  a.  The  recording  of  his  deed  by  a  gi-antee  from  the 
mortgagor,  is  no  notice  to  the  mortgagee  of  the  existence  of 
such  deed,  so  as  to  exempt  the  land  granted  from  liability 
for  the  mortgage  debt,  by  reason  of  a  release  of  the  land  pri- 
marily liable.* 

67  b.  Searches  made  by  a  solicitor,  with  a  view  to  fore- 
close a  mortgage,  which  proceeding  was  abandoned  after  a 
bill  was  prepared,  but  before  it  was  filed,  are  not  evidence  of 
notice  to  the  mortgagee  of  the  facts  which  they  disclosed.^ 

67  c.  Where  a  release  of  mortgaged  premises  described  a 
part  of  the  lands  released,  by  reference  to  a  deed  to  the  re- 
leasee, which  bound  the  land  upon  "  land  now  or  late  of 
W.,"  and  "  along  said  W.'s  land  ;  "  held,  notice  to  the  mort- 
gagee,  that  W.  was  or  had  been  the  owner  of  such  adjoining 
lands.     And,   such   lands,  being  a  part  of  the  mortgaged 

1  Patty  I'.  Pease,  8  Paige,  277.  *  Huward,   &c.  i-.   Ilalscy,   4    Sandf. 

-  Mevey,  4  Barr.  80.  565. 

^  Green  v.  Kaniage,  18  Ohio,  428.  '°  Ibid. 


332  THE   LAW   OP   MORTGAGES.  [CH.  XIII. 

premises,  and  having  been  conveyed  by  the  mortgagor  to 
W.,  long  before  the  execution  of  the  release  ;  held,  the  mort- 
gagee was  chargeable  with  notice  of  such  conveyance,  and 
must  account  for  the  value  of  the  released  premises  in  dis- 
charge of  the  mortgage  debt,  as  between  himself  and  W.'s 
grantees.' 

67  d.  Where  the  part  last  conveyed  was  equal  in  value  to 
the  debt,  and  the  purchaser  bought  in  the  mortgage  debt, 
took  an  assignment  of  the  mortgage,  and  foreclosed  the 
same,  and  then,  under  a  claim  of  title  to  the  whole  tract, 
released  to  the  purchaser  of  the  first  sold  portion,  his,  the  as- 
signee's, right  in  this  portion,  upon  being  paid  therefor  ;  held, 
the  releasee  could  not,  at  law,  recover  back  the  money, 
though  paid  under  a  belief  that  the  releasor  had  title  to  the 
whole  tract.  Whatever  be  the  right  of  the  releasee,  his  rem- 
edy is  at  equity  alone. 

67  e.  A.  mortgaged  certain  property  to  B.  and  others,  to 
secure  debts  due  them  by  him,  and  at  the  same  time  A.  and 
his  wife  C.  mortgaged  to  them  property  belonging  to  C.  in 
her  own  right,  from  her  father's  estate,  as  a  further  security 
for  A.'s  debts  to  B.  C.  died  before  partition  of  her  father's 
estate,  and  her  portion  was  attached  by  the  committee  of 
partition  to  her  son  D.  These  mortgages  were  recorded 
May  3d,  1837.  On  February  12,  1839,  B.  and  his  co-mort- 
gagees released  a  portion  of  C.'s  property  covered  by  the 
mortgage,  but  this  release  was  not  recorded  until  January 
16,  1840.  In  February,  1839,  A,,  as  guardian  of  D.,  con- 
veyed to  the  co-mortgagees  with  B.,  but  without  prejudice 
to  B.'s  rights,  a  part  of  D.'s  estate  in  satisfaction  of  their 
interest  in  the  mortgage ;  and,  in  December,  1840,  they  re- 
leased to  A.  all  their  title  and  interest,  without  prejudice  to 
B.'s  rights.  July  10,  1839,  A.  mortgaged,  as  guardian  of  D., 
and  by  authority  properly  obtained,  a  part  of  D.'s  estate  to 
E.,  which  mortgage  was  recorded  July  19,  1839.  February 
6,  1840,  B.  bought  from  A.  his  equity  of  redemption  in  the 

1  Howard,  &c.  v.  Ilalscy,  4  Sandf.  5G5. 


CH.  XIII.]  SUCCESSIVE   MORTGAdES,   ETC.  333 

estate  covered  by  his  first  individual  mortgage,  whereby,  as 

B.  admitted  in  his  pleadings,  his  estate  as  mortgagee  was 
merged  in  the  fee-simple.  B.  brought  his  bill  to  foreclose 
his  mortgage  on  the  estate  of  C,  which  had  descended  to  D. 
E.  filed  a  cross-bill,  to  exempt  the  lot  mortgaged  to  him  by 
A.,  as  guardian  of  D.  from  liability  to  B.,  and  alleged  that 
he  had  no  notice,  when  he  took  the  mortgage  of  the  release 
of  a  part  of  C.'s  property  from  the  mortgage.  Held,  the 
record  of  the  second  mortgage  to  E.  was  not  constructive 
notice  to  B.  and  his  co-mortgagees,  so  as  to  affect  their  right 
to  proceed  against  the  remainder  of  the  premises,  which  was 
left  covered  by  the  mortgage  after  the  release  of  a  part  to 

C,  but,  as  C.  was  to  be  regarded  as  a  surety  for  A.,  in 
her  mortgage  with  him  to  B.,  that  he  was  obliged  first  to 
proceed  against  the  primary  fund,  which  in  this  case  was 
A.'s  property,  and,  as  he  had  purchased  A.'s  equity  of  re- 
demption therein,  he  must  first  deduct  the  price  at  which  he 
took  A.'s  property  from  the  mortgage-debt,  and  then,  if  there 
was  a  balance  due,  he  could  proceed  against  the  surety's 
property.  As  the  mortgage-debt  was  more  than  extinguished 
by  A.'s  property,  B.'s  bill  was  dismissed  with  costs,  and  the 
property  was  decreed  to  be  sold  by  a  decree  under  the  cross- 
bill to  satisfy  E.'s  mortgage.' 

68.  The  assignment  of  a  security  to  the  owner  of  one 
parcel  of  land  upon  which  it  is  an  equitable  lien,  for  the 
purpose  of  enabling  the  assignee  to  obtain  payment  from 
another  parcel,  which  in  equity  is  primarily  liable  ;  operates 
as  a  merger  of  the  lien  in  equity  only  as  to  the  lands  prima- 
rily chargeable.2 

68  a.  Where  a  purchaser  of  one  of  two  mortgaged  lots 
agrees  to  pay  the  mortgage ;  a  subsequent  purchaser  of  the 
other  has  a  right  to  the  fulfilment  of  this  contract,  notwith- 
standing an  agreement  between  the  vendor  and  the  first  pur- 
chaser, subsequent  to  the  second  sale,  to  vary  such  original 
bargain.^ 

1  Wheelwright    v.   Loonier,   4^  Edw.         -  Skcel  v.  Sprakcr,  8  Paige,  182. 
Ch.  232.  '  3  Baring  v.  Moore,  4  Paige,  166. 


334  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

69.  Two  persons  having  bought  land  subject  to  a  mort- 
gage, which  they  assumed  to  pay,  one  sold  his  share  to  the 
other,  who  agreed  to  pay  the  mortgage,  and  gave  a  bond  of 
indemnity  against  it.  Held,  the  seller  might  in  equity  en- 
force such  agreement,  or  himself  pay  the  debt,  take  an  as- 
signment of  it,  and  file  a  bill  to  foreclose.^  Also  that  the 
defendant  was  estopped  to  set  up  a  payment  made  by  the 
plaintiff  before  he  parted  with  his  interest.^ 

69  a.  If  a  mortgagor  convey  one  of  two  parcels  included 
in  the  mortgage,  taking  back  a  mortgage  for  the  price,  and, 
while  this  is  unpaid,  convey  the  other  parcel  to  another 
purchaser,  and  then  become  insolvent ;  if  the  first  grantee 
will  not  contribute  to  redeem  both  parcels  from  the  original 
mortgage  ;  the  second,  upon  paying  the  whole  debt,  may 
claim  an  assignment  of  that  mortgage,  and  thus  enforce 
contribution.^ 

69  b.  A  mortgagor  of  two  tracts  of  land  conveyed  one  to 
the  plaintiff  and  the  other  to  A.,  who  assumed  the  mortgage- 
debt.  A.  failed  to  pay  the  debt,  but  conveyed,  by  quitclaim, 
to  B.,  who  verbally  agreed  to  pay  the  mortgage.  After  pos- 
session taken  for  foreclosure,  B.  took  an  assignment  of  the 
mortgage,  three  years  having  expired,  and  sold  the  A.  tract 
to  C,  and  the  plaintiff's  tract  to  D.  '  Without  notice,  the 
plaintiff  brings  a  bill  in  equity  against  B.  and  D.,  praying 
for  a  conveyance  of  the  land  to  him.  Held,  the  bill  could 
not  be  maintained.* 

70.  Where  real  estate,  subject  to  mortgage,  is  owned  by 
several  persons,  and  the  interest  of  one  sold  at  sheriff's  sale, 
the  purchaser  is  not  thereby  personally  chargeable  with  a 
proportion  of  the  mortgage-debt,  to  one  of  the  original  own- 
ers who  paid  it  after  the  sale,  in  the  absence  of  proof  that 
he  was  permitted  to  become  the  purchaser,  on  the  condition 
of  his  assuming  such  responsibility.  His  mere  declarations, 
made  either  before  or  after  the  sale,  that  he  was  bound  to 


1  Cornell  V.  Prescott,  2  Barb.  10.  ■'  Allen  v.  Clark,  17  Pick.  47. 

-  Ibid.  ^  Shaw  v.  Gray,  2.3  Maine,  174. 


CH.  Xlil.]  SUCCESSIVE   MORTGAGES,    ETC.  335 

pay  part  of  the  said  mortgage  debt,  are  too  slight  to  create 
such  a  liability,  without  proof  of  consideration  for  the  prom- 
ise, and  especially  if  made  after  his  interest  in  the  property 
had  ceased,  by  reason  of  the  sale  of  the  same  on  a  prior 
mortgage.^ 

71.  Where  mortgaged  land  is  sold  on  execution  against 
the  mortgagor,  as  between  him  and  the  purchaser,  it  becomes 
the  primary  fund  for  payment  of  the  mortgage.^  In  such 
case,  the  mortgagor's  personal  liability  becomes  separated 
from  the  ownership  of  the  land,  and  from  the  remedy  upon 
the  mortgage  against  the  land.  And  a  judgment  in  favor  of 
the  mortgagor,  in  a  suit  brought  upon  the  bond  after  such 
sale,  could  not  be  pleaded  by  the  purchaser  of  the  mortgaged 
premises,  by  way  of  estoppel,  in  bar  of  a  suit  for  foreclosure.-^ 

71  a.  In  Gill  v.  Lyon,^  the  defendant  was  a  purchaser 
from  the  mortgagor  of  part  of  the  land  mortgaged,  and  had 
paid  the  full  value  of  the  land,  and  took  a  deed  with  cove- 
nants of  seizin  and  freedom  from  incumbrances.  After  this 
conveyance,  the  plaintiff  bought  the  rest  of  the  land,  at  a 
sale  on  a  judgment  against  the  mortgagor.  Held,  the  de- 
fendant was  not  bound  to  contribute  towards  redeeming  the 
mortgage,  because  the  parties  were  not  an  an  equal  footing 
in  equity. 

72.  So  where  there  are  two  mortgages  upon  the  same 
property,  and  the  holder  of  the  prior  mortgage  forecloses, 
and  purchases  in  the  property,  the  presumption  is,  that  he 
bids  only  to  the  value  of  the  equity  of  redemption ;  and 
thenceforth  the  land  becomes  the  primary  fund  for  payment 
of  the  debt  secured  by  the  senior  mortgage.-^  {m) 

1  Wager  v.  Chew,  15^enn.  323.  *  Johns.  Ch.  447. 

2  Weaver  v.  Toogoodn  Barb.  238.  &  Mathews  v.  Aikin,  1  Comst.  595. 
■^  Heyer  r.  Pruyn,  7  Paige,  465. 


{m)  A  mortgage  was  made  of  an  interest  in  certain  mills,  to  secure  84,000, 
and  a  conveyance  of  other  land  to  the  mortgagee,  absolute  in  form,  but  in 
fact,  as  security  for  SG.OOO.  The  mortgagee  assigned  the  mortgage  and 
conveyed  the  land  to  the  same  person,  with  notice  of  the  prior  transaction. 


336  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

73.  So  where  a  mortgagee  recovers  judgment  on  the  debt, 
and  the  mortgagor  afterwards  conveys  land  not  included  in 
the  mortgage,  and  subject  to  the  lien  of  the  judgment ;  the 
grantee  may  in  equity  oblige  the  mortgagee  to  apply  the 
mortgaged  premises  first  to  his  debt.  ^  (n) 

73  a.  It  has  been  held  in  Vermont,  if  several  parcels  are 
mortgaged  for  one  debt,  and  a  third  person  becomes  inter- 
ested in  one  of  them,  from  necessity,  or  otherwise  than  in 
the  way  of  voluntary  speculation ;  he  may  either  require  of 
the  mortgagee  an  equitable  apportionment  of  the  debt,  or  an 
assignment  of  the  mortgage  on  payment  of  it ;  in  either 
case,  reference  being  had  to  such  property  only  as  was  equi- 
tably chargeable,  where  he  became  interested  in  the  property.^ 
But  this  rule  has  been  since  questioned,  and  it  has  been 
held  that,  in  case  of  mortgages  of  several  tracts,  the  mort- 
gage is  to  be  apportioned  upon  the  land  according  to  value, 

1  Weaver  v.  Toogood,  1  Barb.  238.  -  Honic  v.  Chittenden,  1  Verm.  28. 


The  grantee  foreclosed  the  mortgage,  and  upon  the  sale  purchased  the 
mills,  and  afterwards  mortgaged  the  whole  property  to  the  first  mortgagee 
for  Si 0,000.  Held,  the  last  mortgage  was  an  equitable  lien  on  the  land 
only  for  S6,000  and  interest,  deducting  the  rents  and  profits.  Williams  v. 
Thorn,  11  Paige,  459. 

(n)  Upon  this  subject,  the  following  points  have  been  recently  settled  in 
Kentucky.  Where  land  and  slaves  are  included  in  a  mortgage,  and  parts 
of  the  property  sold  to  different  persons ;  in  equalizing  the  burden  among 
the  purchasers,  the  equitable  course  is  to  apportion  it  according  to  the  val- 
ues at  the  time  of  foreclosure ;  but  not  to  take  into  consideration  improve- 
ments hand  fide  made  by  the  purchasers.  Dickey  v.  Thompson,  8  B.  Mon. 
312.  Where  a  mortgagor  sells  part  of  the  properly,  agreeing  to  pay  the 
mortgage;  it  sliall  first  be  paid  from  the  part  whicl^^ie  retains,  if  any,  be- 
fore calling  upon  the  purchaser  of  another  part.  lb. ;  ace.  Gumming  v. 
Gumming,  3  Kelly,  (Ga.)  4G0.  Where  parcels  of  land,  belonging  to  differ- 
ent purcha.sers,  are  charged  with  an  incumbrance,  each  should  bear  its  pro- 
portion thereof,  according  to  its  value,  if  each  purchaser  paid  a  full  price, 
expected  to  hold  the  land  clear,  and  made  no  engagement  to  pay  the  in- 
cumbrance. The  burden  cannot  be  thrown  wholly  upon  the  purchaser  of 
the  last  lot.  lb. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  337 

and  each  owner  to  have  a  certain  time  for  redeeming  his 
part,  or  to  be  foreclosed.  If  one  only  redeems,  he  must  also 
redeem  the  other  part,  or  forfeit  the  whole.  K  he  redeems 
the  whole,  he  takes  it  himself^ 

74.  Where  some  of  the  defendants  in  their  answers  insist 
that  the  estates  of  others  shall  be  first  charged  with  the 
debt,  and  the  latter  are  defaulted ;  the  Court  will  not  deter- 
mine the  order  of  sale,  but  direct  the  master  to  sell  in  inverse 
order,  and  conformably  to  equity .^ 

74  a.  A  mortgagor  of  several  lots  sold  one  of  them.  The 
assignees  of  the  mortgage  brought  a  bill  to  foreclose,  making 
all  incumbrancers  parties  except  the  purchaser  of  this  lot. 
A  sale  was  decreed,  and  the  lot  was  sold,  and  bought  by 
one  of  the  assignees,  and  the  price  nearly  satisfied  the  mort- 
gage. The  assignee  brings  ejectment  for  the  lot,  and  recov- 
ers judgment.  The  purchaser  of  the  lot  then  brings  a  bill  to 
redeem,  in  payment  of  the  balance  of  the  mortgage.  Held, 
he  must  also  pay  the  price  paid  for  the  lot.^ 

75,  The  following  case  illustrates  the  several  points  above 
considered,  as  to  the  respective  rights  of  the  various  parties 
interested  in  a  mortgaged  estate.  January  1,  1817,  a  mort- 
gage was  made  by  one  of  the  defendants  to  the  plaintiff  to 
secure  a  note  for  §1,116.  The  other  defendant  purchased 
the  right  of  redemption,  and  filed  a  bill,  setting  forth  that 
the  mortgage  included  two  lots  of  land,  of  very  different 
values  ;  that  lot  No.  1,  being  the  less  valuable  one,  had  been 
sold  to  him  in  November,  1821,  upon  an  execution  upon  the 
other  defendant  and  himself,  as  security  for  the  other  defend- 
ant, for  $175 ;  and  praying  that  the  mortgage  debt  due  to 
the  plaintiff*  might  be  apportioned  between  the  lots  according 
to  their  comparative  values,  and  lot  No.  1  discharged  from 
the  mortgage  upon  payment  of  the  amount  thus  charged 
upon  it ;  or  that  the  plaintiff"  might  be  decreed  to  accept  his 
debt  from  the  purchaser,  and  assign  the  mortgage  to  him. 

1  Gates  V.  Adams,  24  Verm.  70.  s  Gliddon  v.  Andrews.  14  Ala.  783. 

2  Ilathbonc  v.  Clark,  9  Paige,  648. 

VOL.  I.  29 


338  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

It  appeared  that  in  July,  1821,  the  mortgagor  sold  No.  2,  the 
plaintiff  verbally  promising  to  release  it  from  the  mortgage. 
In  February,  1822,  after  the  purchase  of  No.  1,  the  plaintiff, 
without  consideration,  accordingly  made  a  release.  Upon  a 
bill  in  equity  to  foreclose,  brought  by  the  mortgagee  against 
the  mortgagor  and  purchaser,  held,  the  case  was  not  one 
where  the  purchaser,  as  a  party  interested  in  one  of  two 
mortgaged  estates,  might  by  the  aid  of  a  court  of  equity 
throw  the  burden  upon  the  other,  because  the  plaintiff's  in- 
terest would  be  thereby  affected  ;  but  that  the  purchaser  was 
entitled  to  relief,  either  by  paying  the  mortgagee  his  debt, 
and  taking  a  conveyance  of  all  the  property  subject  to  the 
incumbrance ;  or  by  paying  such  proportion  of  the  debt,  as 
the  value  of  his  purchase  bore  to  that  of  the  whole  property ; 
that  the  Court  were  bound  to  regard  the  equitable  situation 
of  the  property  at  the  time  of  the  purchase,  taking  into  view 
the  mortgagee's  verbal  agreement  to  release  a  part  of  it,  as 
any  other  course  would  be  punishing  him  for  the  benevolent 
act  of  relinquishing  a  part  of  his  security  ;  and  that  the  pur- 
chaser, not  being  a  mere  speculator  or  volunteer,  but  having 
purchased  by  reason  of  having  been  bail  for  the  mortgagor, 
was  entitled  to  the  privilege,  which  the  mortgagee  would 
otherwise  have  had,  of  electing  between  the  two  modes  of 
relief  above  specified.^ 

76.  It  has  been  recently  held,  that  where  one  person  has 
two  mortgages  from  different  persons  on  different  estates,  and 
another  person  has  a  mortgage  on  only  one  of  them,  equity 
will  not  compel  the  former  to  resort  first  to  the  fund  on 
which  the  latter  has  no  claim.^ 

76  a.  Mortgages,  successively  to  A.,  B.  and  C,  on  the  same 
land,  except  seventy-five  acres  not  included  in  B.'s  deed. 
Held,  as  against  A.  and  C,  B.  had  a  right  to  have  A.'s  mort- 
gage satisfied  from  that  part  of  the  land,  and  that  C.  could 
not  call  on  B.  to  contribute  pi-o  raid  to  payment  of  A.'s 
mortgage.^ 

1  Cl)ittcndcn  v.  15arncy,  1  Verm.  28.         "  Conrad  v.  Harrison,  3  Leigh,  532. 
-  Woollen  V.  Ilillcn,  9  Gill,  18.'). 


CH.  XIV.  1  FUND   FOR  PAYMENT,   ETC.  339 


CHAPTER    XIV. 

FROM  WHAT  FUND  A  MORTGAGE  SHALL  BE  PAID,  UPON  THE 
DEATH  OF  THE  MORTGAGOR. 


1.  General  nature  of  the  subject. 

2.  General  rules  as  to  the  fund  for 
payment  of  a  mortgage. 


7.  Decided  cases. 
33.  Miscellaneous  points   and  decis- 
ions. 


1.  Having  treated,  in  the  several  preceding  chapters,  of  the 
respective  titles  and  interests  of  mortgagor  and  mortgagee, 
and  more  particularly  with  reference  to  the  question  whether 
those  interests  come  under  the  head  of  real  or  personal  estate  ; 
the  natural  succession  of  topics  leads  us  to  consider  the  dis- 
position which  the  law  makes  of  a  mortgagor's  property  after 
his  death,  in  relation  to  payment  of  the  mortgage  debt ;  or, 
in  other  words,  the  fund  from  which  that  debt  shall  be  paid. 
This  will  be  the  subject  of  the  present  chapter.  It  is  of  far 
less  importance  in  the  United  States  than  in  England,  be- 
cause in  this  country  the  law  makes  substantially  the  same 
disposition  of  the  real  and  personal  property  of  one  deceased. 
Consequently,  very  few  cases,  comparatively,  are  to  be  found 
in  the  American  Reports,  where  questions  of  this  nature 
have  arisen.  They  have,  however,  occasionally  occurred, 
and  any  view  of  the  American  law  of  mortgages  would  be 
incomplete,  without  containing  a  general  view  of  this  partic- 
ular topic. 

2.  The  general  principles  relating  to  this  subject  may  be 
thus  stated. 

It  is  a  rule  in  equity,  that  where  one  dies  leaving  a  variety 
of  funds,  and  a  debt  which  must  be  paid  from  them  ;  pay- 
ment shall  be  made  from  that  fund  tvhich  had  the  benefit  of 
the  money.    Hence  a  mortgage  upon  real  estate,  in  the  hands 


340  THE   LAAV   OF   MORTGAGES.  [CH.  XIV. 

of  the  heir  or  of  a  devisee,  shall  be  paid  out  of  the  personal 
estate  in  the  hands  of  the  executor ;  because  the  latter  was 
increased  by  the  money  for  which  the  mortgage  was  made,  (a) 


(rt)  The  rule  in  question  is  to  some  extent  predicated  upon  the  theory 
and  definition  heretofore  alluded  to,  (p.  1.)  which  makes  borrowed  money  au 
essential  element  of  a  mortgage.  In  addition  to  the  exceptions  which  will 
be  presently  stated,  it  would  seem  that  the  rule  ought  not  to  apply  in  any 
case  where  the  mortgagor's  personal  estate  is  not  augmented  by  making  the 
mortgage,  as  in  the  common  case  of  buying  land,  paying  part  of  the  price, 
and  mortgaging  back  for  the  rest;  the  whole  of  which  operation,  taken  to- 
gether, diminishes,  instead  of  increasing  the  personalty. 

Upon  a  sale  by  the  mortgagee  for  the  purpose  of  foreclosing ;  if  in  the 
lifetime  of  the  mortgagor,  the  surplus,  after  satisfying  incumbrances,  is  per- 
sonal estate  ;  if  after  his  death,  it  belongs  with  the  equity  of  redemption,  to 
the  heir.     Wright  v.  Rose,  2  Sim.  &  St.  323. 

During  the  mortgagor's  life,  the  land  is  said  to  be  the  primary  fund  for 
payment.     Gilbert  v.  Averill,  15  Barb.  20. 

So  where  a  mortgagor  conveys  the  land,  subject  to  the  payment  of  the 
mortgage  by  the  purchaser,  the  land  is  the  primary  fund  therefor,  and  is  not 
discharged  by  a  release  from  the  mortgagee  to  the  mortgagor  of  his  personal 
liability.     Tripp  v.  Vincent,  3  Barb.  Ch.  613. 

The  purchaser  of  land,  subject  to  the  payment  of  a  mortgage,  must  rely 
on  the  land  for  payment,  and  cannot  make  a  personal  claim  against  the 
mortgagor.     Cherry  v.  Monro,  2  Barb.  Ch.  618. 

Land  was  conveyed  to  two  persons,  who  gave  back  a  joint  bond  and  mort- 
gage for  the  price.  One  of  them  afterwards  conveyed  to  the  other  his 
moiety,  subject  to  the  mortgage,  the  latter  agreeing  to  pay  the  bond  and 
mortgage,  and  giving  the  former  a  bond  of  indemnity  against  it.  The  latter 
then  conveyed  the  whole  to  another  person,  by  a  warranty  deed  ;  and  sub- 
sequently became  insolvent,  and  failed  to  pay  the  bond  and  mortgage.  The 
mortgagee  being  about  to  foreclose,  the  last  purchaser  induced  him  to  bring 
an  action  against  the  joint  mortgagor,  who  had  transferred  his  interest  to 
the  other,  upon  the  bond.  A  rule  nisi  for  judgment  having  been  obtained 
against  the  defendant  in  that  suit,  he  tendered  to  the  plaintiff  the  amount 
due,  Avith  interest  and  costs,  and  demanded  an  assignment  of  the  bond  and 
paortgagc  to  a  third  person,  that  he  might  enforce  them  upon  the  land.  The 
plaintiff",  in  collusion  with  the  purchaser,  refused  to  receive  the  money  and 
make  the  assignment.  The  defendant  thereupon  files  the  present  bill  in 
Chancery  against  both  these  parties.  Held,  he  might  in  equity  require  the 
mortgagee  to  resort  to  the  land  for  payment,  and  to  be  subrogated  in  the 
place  of  the  mortgagee  to  his  remedy  against  the  land.     lb. 


CH.  XIV.]  FUND   FOR  PAYMENT,   ETC.  341 

And  this  principle  is  adopted,  though  the  land  be  devised 
subject  to  the  incumbrance,  or  the  personal  estate  bequeathed, 
or  the  land  expressly  charged  with  debts,  or  the  real  estate 
limited  in  trust,  either  in  fee  or  for  a  term,  for  payment  of 
debts. 


So  -where  an  equity  is  sold  on  execution,  the  land  is  the  primary  fund. 
2  Cruise,  146. 

A  mortgage  debt  must  be  paid  out  of  the  personal  estate  of  the  mortgagor, 
and,  if  that  is  not  adequate,  then  the  balance  should  be  paid  out  of  that  por- 
tion of  the  real  estate  contained  in  the  mortgage.  Goodburn  v.  Stevens, 
1  Maryland  Ch.  Decis.  420. 

A  mortgagee  may  resort  to  the  mortgaged  property,  after  the  death  of  the 
mortgagor,  without  going  into  an  account  of  the  j^ersonal  assets.  Patton  v. 
Page,  4  Hen.  &  Mun.  449. 

An  administrator,  after  representing  the  estate  insolvent,  sold  real  estate, 
under  a  license,  and  applied  the  proceeds  in  full  payment  of  a  debt  secured 
by  mortgage  of  such  estate,  ■which  "was  duly  recorded,  but  previously  un- 
known to  him  and  the  purchaser  ;  charging  himself  in  his  account  with  only 
the  balance.  Held,  he  was  justified  in  so  doing  ;  inasmuch  as  he  could  not 
make  a  good  title  to  the  estate,  without  extinguishing  the  mortgage,  the 
estate  itself  being  sold,  and  not  a  mere  equity  of  redemption.  The  mort- 
gagee was  not  bound  to  relinquish  his  security  and  receive  a  mere  dividend, 
but  could  hold  it  till  paid  in  full.     Church  r.  Savage,  7  Cush.  440. 

Demise  of  the  A.  estate,  subject  to  debts,  &c.,  to  the  wife  for  life,  remain- 
ders over;  and  of  the  B.  estate,  subject,  &c.,  to  her  absolutely.  The  testator 
afterwards  mortgaged  the  former  estate.  The  personal  property  being  de- 
ficient, held,  the  two  estates  should  contribute  ratably  to  the  payment  of  the 
mortgage.     Middleton  v.  Middleton,  21  Eng.  Law  &  Eq.  542. 

Where  notes  are  secured  by  mortgage,  and  the  mortgagor  devises  part  of 
the  premises  and  sells  the  rest,  and  dies ;  the  holder  of  the  notes  loses  no 
rights  under  the  mortgage  by  failure  to  present  them  to  the  executor  for 
payment  within  the  time  required  by  law,  in  order  to  hold  the  executor ; 
and  there  is  no  distinction  between  the  case  of  a  mortgagee  in  possession 
and  that  of  one  out  of  possession  of  the  mortgaged  premises.  Inge  v.  Board- 
man,  2  Ala.  331. 

In  Xew  Hampshire,  an  administrator  must  redeem  a  mortgage,  unless 
licensed  to  sell  subject  thereto.  Kev.  Sts.  318.  In  Missouri,  the  Court  may 
order  redemption  with  the  personal  assets.  If  the  will  makes  no  provision 
therefor,  and  It  will  be  beneficial  to  the  estate,  and  not  injurious  to  creditors ; 
otherwise,  the  Court  may  order  a  sale  of  the  equity.    Missouri  Sts. 

29* 


342  THE   LAW   OF   MORTGAGES.  [CH.  XIV. 

3.  If  the  personal  estate  is  deficient,  a  mortgage  shall  be 
discharged  from  the  proceeds  of  land  devised  for  payment  of 
debts.  And  where  one  estate  descends  and  another  subject 
to  mortgage  is  devised,  the  mortgage  shall  be  paid  from  the 
former,  (b) 


(b)  It  is  said,  there  are  four  classes  of  estates  to  be  applied  in  discharge 
of  mortgage  debts ;  first,  the  general  personal  estate,  unless  specially  ex- 
empted or  specifically  bequeathed  ;  secondly,  real  estates  particularly  devised 
for  payment  of  debts,  which  may  be  so  devised  as  to  form  a  mixed  fund  with 
the  first ;  thirdly,  real  estates  descended,  whether  purchased  before  or  after 
the  date  of  the  will ;  fourthly,  real  estates  specifically  devised,  charged  with 
payment  of  debts.     Coote,  547. 

The  devisee  of  an  estate  in  mortgage  may  call  on  an  estate  devised  for 
payment  of  debts,  to  indemnify  him.  So  upon  estates  devised,  and  charged 
with  payment  of  debts.  So  although  the  estate  is  devised  subject  to  incum- 
brances, lb.  544.  So  the  descended  estate  shall  exonerate  the  mortgaged 
estate  devised.  And  the  like  will  be  the  case,  if  the  personal  estate  is  ex- 
empted from  payment  of  debts,  and  the  mortgaged  estates  devised  subject  to 
incumbrances,  and  other  parts  of  the  real  estate  suffered  to  descend  to  the 
heir. 

After  the  personal  estate  is  exhausted,  estates  expressly  devised  for  pay- 
ment of  debts  will  be  next  applicable.  This  rule  however  will  not  apply  to 
estates  specifically  devised  charged  with  payment  of  debts.-  lb.  545. 

If  the  owner  of  several  leasehold  estates  mortgage  one  of  them,  and  then 
bequeath  them  separately  to  different  legatees,  and  direct  payment  of  his 
debts  from  his  residuary  personal  estate,  which  proves  iusuflicient  for  that 
purpose ;  the  legatee  of  the  mortgaged  estate  takes  it,  cum  onere,  and  cannot 
call  for  a  contribution  from  the  others.  IlalliwcU  v.  Tanner,  1  Kuss.  &  My. 
633. 

But  where  several  estates,  separately  mortgaged,  were  specifically  devised 
to  different  persons,  with  directions  that  the  mortgages  should  be  paid  from 
the  personal  estate,  which  proved  insufficient  to  pay  the  mortgage  and  other 
debts ;  a  decree  was  passed,  that  the  mortgage  and  other  specialty  debts 
should  first  be  paid  from  the  personal  assets  pi'o  rata,  the  residue  of  the  mort- 
gage debts  borne  by  the  respective  estates  on  which  they  were  charged,  and 
the  deficiency  of  the  other  specialty  debts,  and  the  simple  contract  debts, 
borne  by  the  several  devised  estates  and  specific  legacies  pro  rata.  Symons 
V.  James,  2  Y.  &  Coil.  301,  N.  S. 

In  New  York,  under  the  Ileviscd  Statutes,  upon  the  death  of  a  mortgagor, 
the  real  estate  is  primarily  chargeable  in  the  hands  of  the  heir  or  devisee. 


CH.  XIV.]  FUND   FOR  PAYMENT,   ETC.  343 

4.  If,  however,  the  will  either  expressly  provide,  or  contain 
provisions  from  which  a  clear  intent  may  be  inferred,  that 
the  mortgage  debt  shall  fall  upon  the  real  instead  of  the  per- 
sonal estate ;  the  law  will  carry  it  into  effect.  So  the  specific 
bequest  of  a  chattel  will  exempt  it  from  application  to  a 
mortgage  debt. 

5.  The  rule  above  stated,  (§  2,)  being  founded  on  the  con- 
sideration that  the  debt  was  originally  a  personal  one,  and 
the  charge  on  the  land  only  collateral,  does  not  apply,  where 
the  mortgage  debt  was  contracted  by  one  person,  and  the 
land  descends  to  another,  who  also  dies,  leaving  it  a  part  of 
his  estate.  Thus  if  a  grandfather  make  a  mortgage,  with  a 
covenant  to  pay  the  money,  and  the  land  descend  to  his  son, 
who  dies  without  paying  the  mortgage,  leaving  personal 
estate  and  a  son  ;  the  mortgage  shall  not  be  paid  from  the 
father's  personal  estate.  So  where  one  covenants  to  pay  the 
debt  of  another,  which  is  secm-ed  by  mortgage,  the  personal 
estate  of  the  former  will  not  be  applied  in  the  first  instance 
to  payment  of  the  mortgage.  And  even  though  one  expressly 
charge  his  real  and  personal  estate  with  his  debts,  the  latter 


unless  the  ■will  make  provision  for  another  mode  of  payment.  Halsey  v. 
Eeed,  9  Paige,  446  ;  N.  Y.  Rev.  Sts.  749.  In  1824,  the  intestate  gave  a 
bond,  secured  by  mortgage.  The  land  was  sold  subject  to  payment  of  the 
mortgage,  and  conveyed  to  a  trustee  for  the  benefit  of  the  wife  of  the  intes- 
tate. After  his  death,  the  cestui  que  trust,  being  legal  owner  under  the 
Revised  Statutes,  administered  upon  the  estate.  Held,  in  equity,  the  land 
"was  the  primary  fund  for  the  payment  of  the  mortgage,  and  the  administra- 
trix, owning  subject  thereto,  was  not  allowed  for  a  payment  of  the  mort- 
gage.   Jumel  V.  Jumel,  7  Paige,  591. 

In  Pennsylvania,  where  land  is  mortgaged  for  the  payment  of  the  widow's 
share  of  the  valuation  of  the  property  of  an  intestate,  under  an  inquest  from 
the  Orphans'  Court ;  the  mortgagee  may  resort  to  the  mortgagor's  personal 
property,  and  is  not  restricted  to  the  land.     Mansell,  &c.  1  Parsons,  371. 

In  Maryland,  the  devisees  of  mortgaged  property  have  a  right  to  call  on 
the  executor  to  redeem,  to  the  extent  of  the  excess;  where  the  personal 
property  is  more  than  sufficient  to  pay  debts.  But  they  have  no  such  equity, 
as  against  devisees  of  other  property.    Gibson  v.  McCormick,  10  G.  &  J.  66. 


344  THE   LAW   OF   MORTGAGES.  [CH.  XIV. 

will  not  be  liable  to  the  payment  of  a  mortgage  made  by 
another. 

6.  So  where  one  purchases  land  subject  to  mortgage,  his 
personal  estate  will  not  go  to  pay  it,  even  though  he  have 
expressly  covenanted  for  its  payment,  unless  an  intention  be 
proved  to  make  the  debt  his  own.  If  husband  and  wife  join 
in  mortgaging  her  land,  and  he  has  the  benefit  of  the  money ; 
it  shall  be  first  repaid  from  his  personal  estate.  But  where 
money  is  borrowed  on  her  estate,  partly  for  his  use  and  partly 
to  pay  her  debts ;  he  is  not  bound  to  indemnify  her  estate 
against  any  part  of  it.  Nor  will  his  personal  estate  be  liable, 
if  it  appear  not  to  have  been  her  intention  to  stand  as  a  cred- 
itor for  the  mortgage-money.^ 

7.  The  following  cases  illustrate  the  principles  above 
stated.- 

8.  A  testator,  having  purchased  an  annuity  out  of  lands 
mortgaged,  and  for  his  own  protection  taken  an  assignment 
of  the  mortgage  ;  directed  in  his  will  that  the  mortgage  debt 
should  be  paid  from  the  personal  estate ;  and  it  was  decreed 
accordingly ;  "  chiefly  for  that  Packley  (the  testator)  by  his 
will,  which  were  the  words  of  a  dying  man,  had  declared  it  to 
he  his  debt,  and  appointed  it  to  be  paid  out  of  his  personal 
estate."  ^ 

9.  A  person  having  a  life-estate,  with  power  to  settle  a 
jointure  upon  his  wife,  covenanted  to  make  such  settlement, 
but  died  without  doing  it.  Upon  a  bill  brought  against  his 
heir  for  a  specific  execution,  it  was  held,  that  the  assets  of 
the  deceased  should  not  be  applied  to  relieve  the  estate  set- 
tled, because  the  debt  did  not  originally  charge  the  person- 
alty. The  covenant  remained  as  a  real  lien  on  the  estate, 
and  the  personal  estate  could  not  be  applied,  because  there 
was  no  debt  from  which  this  estate  was  to  be  relieved.* 

1  2  Cruise,  14G-175.  truther,  lOBciiv.453  ;  Symons  v.  James, 

'^  Sec  1  Hill,  on  R.  P.  431-433 ;  Ma-  2  Y.  &  C.  N.  K.  301 ;  Hewett  v.  Snare, 

son,  &c.,  1  Parsons,  132;  Mansell,  &c.  1  IJc  Gcx  &  Sm.  333. 

lb.  370;  Driver  v.  Fcrrand,  1  11.  &  My.  "  Pocidey  v.  Poddcy,  1  Vern.  36. 

081  ;  Kirkc  v.  Kirke,  4  Riiss.  43.'j ;  Jones  "^  Coventry  v.  Coventry,  9  Mtfd.  12 ; 

V.  Jiruce,  11  Sim.  221;  Ouscley  v.  Ans-  2  P.  Wms.  222;  Str.  596. 


CH.  XIV.]  FUND   FOR  PAYMENT,   ETC.  345 

10.  A  person  having  died  after  making  a  mortgage  of  his 
estate,  his  daughter  and  heir  married,  and  her  husband  set- 
tled the  estate  by  fine  on  himself  and  his  wife,  joined  in 
an  assignment  of  the  mortgage,  and  covenanted  to  pay  the 
money.  After  his  death,  held,  his  personal  estate  should  not 
be  applied  to  pay  the  mortgage,  as  the  covenant  was  not 
intended  to  change  the  nature  of  the  debt,  but  only  as  an 
additional  security  to  the  mortgagee.^ 

11.  A  father  having  made  a  mortgage,  his  son  covenanted 
with  an  assignee  of  the  mortgage  to  pay  the  debt.  Upon 
the  death  of  the  father,  the  son  by  a  settlement  succeeded  to 
the  estate.  The  latter  having  died  intestate,  held,  the  debt 
should  not  be  paid  from  his  personal  ^ssets,  because  the  debt 
was  still  that  of  the  father,  and  the  covenant  of  the  son  was 
a  mere  security .^ 

12.  In  the  case  of  Parsons  v.  Freeman,^  it  was  said  by 
Lord  Hardwicke,  that  where  an  ancestor  has  not  personally 
charged  himself  with  the  mortgage  debt,  the  heir  shall  take 
cum  onere.  So  if  one  purchase  the  equity  of  redemption, 
with  usual  covenants  to  pay  the  mortgage,  he  was  inclined 
to  the  opinion,  though  he  knew  of  no  case  which  decided  the 
point,  that  the  heir  could  not  claim  to  .have  the  land  relieved. 
But  where,  as  in  that  case,  the  purchaser  agreed  with  the 
seller  to  pay  a  part  of  the  price  to  him,  and  the  rest  to  the 
mortgagee,  this  made  the  debt  his  own,  and  it  should  be  first 
paid  from  the  personal  estate,  (c) 

1  Bagot  V.  Oughton,  1  P.  Wras.  347.      See  Ancastcr  v.  Mayer,  1  Bro.  454 ;  Le- 

2  Evelyn  v.  Evelyn,  2  P.  Wms.  650.     man  v.  Newnham,  T  Ves.  51. 

3  Arabl.  115;  2  P.  Wms.  664,  n. 


(c)  It  is  supposed  by  Chancellor  Kent,  (Cumberland  v.  Codrington,  3 
Jolins.  Cha.  266-267,  a  case  of  extraordinary  learning  and  value,)  that  this 
case  is  imperfectly  reported,  no  facts  being  stated,  and  a  very  brief  note  of 
the  opinion.  He  remarks,  that  as  it  stands  it  is  repugnant  to  most  of  the 
cases  before  and  after  it,  and  even  to  another  decision  of  Lord  Hardwicke 
himself,  made  soon  afterwards.  Thus  in  Lewis  v.  Nangle,  (Amb.  150,  2  P 
Wms.  664,  n.,)  an  estate  subject  to  mortgage  having  come  to  a  married 


846  THE   LAW_  OF  MORTGAGES.  [CH.  XIV. 

13.  In  the  case  of  Forrester  v,  Leigh,^  a  testator  had  pur- 
chased several  mortgaged  estates,  and  covenanted  to  pay 
one  of  the  mortgage  debts.  He  pm-chased  a  part  of  another 
of  the  estates,  and  he  and  his  co-purchaser  covenanted  to 
pay  their  several  shares,  and  to  indemnify  each  other.  Held, 
by  Lord  Hardwicke,  as  between  legatees  and  devisees  of  the 
testator,  the  debt  should  be  paid  from  the  land. 

14.  A  mortgagor  conveyed  the  estate  with  warranty,  ex- 
cept as  against  the  mortgage,  providing  also  that  the  mort- 
gage debt  should  be  paid  by  the  purchaser  from  the  purchase- 
money.  An  indorsement  acknowledged  payment  of  a  part 
of  the  price  on  perfection  of  the  deed,  and  the  rest  allowed 
on  account  of  the  mortgage.  The  purchaser  by  will  gave  a 
large  personal  estate  to  his  wife,  and  also  devised  to  her  the 
mortgaged  land  for  life,  then  to  his  Oldest  son  George  in  fee, 
subject  to  debts  and  legacies,  declaring  that  his  wife  should 
hold,  free  from  incumbrance,  and  that  George  should  pay  the 
interest  of  the  mortgage  debt  from  other  lands  devised  to 
him.  After  some  legacies,  he  bequeathed  the  rest  of  his  per- 
sonal property,  after  payment  of  all  his  just  debts,  and  aU 
his  real  estate,  to  George,  whom  he  appointed  his  executor. 
George  paid  the  interest,  but  not  the  principal,  of  the  mort- 
gage debt.  His  mother  also  released  her  interest  in  the  land 
to  him.  He  made  a  will,  giving  small  annuities  to  his 
younger  sons ;  the  mortgaged  land,  according  to  his  estate 
therein,  to  his  youngest  son,  William  ;  and  the  principal  part 
of  his  estate,  which  was  very  large,  to  his  eldest  son,  Robert. 
After  the  death  of  George,  Robert  refused  to  pay  the  princi- 

1  Ambl.  171 ;  2  P.  Wms.  G64,  n. 


woman,  tlie  busbaud  borrowed  money  upon  a  bond  and  mortgage,  in  which 
she  joined,  and  the  money  was  applied  partly  to  pay  her  debts  and  partly 
for  his  use.  There  was  a  covenant  by  the  husband  to  pay  the  whole  debt. 
Lord  Hardwicke  held,  that,  according  to  the  presumed  intention  of  the  par- 
ties, the  land  was  the  primary  fund  for  payment,  and  the  husband  was  not 
bound  to  relieve  it. 


CH.  XIV.]  FUND   FOR   PAYMENT,   ETC.  347 

pal  or  interest  of  the  mortgage  debt,  and,  William  being 
unable  to  pay  it,  the  mortgage  was  sold,  and  afterwards  the 
estate  also,  under  a  decree.  William  then  filed  a  bill  against 
Ihe  executors  of  the  father  (Robert  being  one)  and  of  the 
grandfather,  to  have  the  mortgage  debt  paid  from  the  per- 
sonal assets,  in  relief  of  the  land.  Lord  Chancellor  LifFord 
decreed,  that  the  mortgage  debt  was  the  debt  of  the  grand- 
father at  his  death ;  and  that  his  personal  estate,  which  came 
first  to  the  son  and  afterwards  to  the  grandson,  should  be 
applied  to  pay  it.  This  decree  was  affirmed  in  the  House 
of  Lords.i  (f/) 

15.  A  mortgage  was  made  to  the  plaintiff  of  a  certain  lot 
of  land,  and  the  mortgagor  then  devised  all  his  estate, 
including  many  other  lots,  to  the  same  devisee.  The  devisee 
devised  the  land  mortgaged  to  one  person,  and  the  rest  of  her 
estate  to  her  executors.  The  plaintiff  having  recovered  judg- 
ment upon  the  bond  secured  by  the  mortgage,  a  motion  was 
made,  that  the  debt  should  be  levied  upon  the  land  mort- 
gaged, and  the  rest  of  the  estate  discharged.  Held,  all  the 
lands  of  the  mortgagor  should  contribute,  according  to  their 
respective  values  ;  that  the  will  of  the  first  devisee  showed  no 
intention  that  the  devisee  of  that  will  should  take  the  estate 
cum  o)iere,  and  therefore  the  mortgage  debt  should  be  satis- 
fied equally  from  this  and  the  other  lands ;  and  that  as  the 
latter  devise  was  specific,  to  charge  this  devisee  with  the 
whole  debt  would  plainly  defeat  the  intention  of  the  devisor, 
while  charging  the  lands  held  by  the  residuary  legatees  would 
have  no  such  effect.^ 

1  Earl  of  Belvedere  v.  Eochford,  5        '-  Morris    v.   McConnaughy,  2  Dall. 
Bro.  Pari.  299.  189. 


(d)  Chancellor  Kent  (3  Johns.  Cha.  270,  271,  272)  questions  the  binding 
authority  of  this  decision.  He  remarks,  that  it  has  been  disregarded  or 
rejected  by  Lords  Thurlow,  Alvanley,  and  Eldon,  and  by  Sir  William 
Grant ;  and  also  that  no  precise  account  is  given  of  the  reasons  upon  -Nvhich 
it  proceeds  ;  and  that  it  may  perhaps  be  considered  as  turning  upon  the 
construction  of  a  will  and  its  very  special  provisions. 


848  THE   LAW   OF  MOKTGAGES.  [CH.  XIV. 

16.  A  mortgagor  having  died,  after  devising  the  land,  the 
devisee  covenanted  with  the  holder  of  the  mortgage,  that  the 
land  should  remain  bound  for  the  debt  and  interest,  with  an 
addition  of  one  per  cent,  of  interest.  After  the  death  of  the 
devisee,  the  question  arose,  whether  the  debt  and  interest,  or 
at  least  the  arrears  of  interest,  with  the  additional  one  per 
cent.,  should  be  paid  from  his  personal  estate.  Held,  both 
the  principal,  the  regular  and  the  additional  interest,  should 
be  primarily  charged  upon  the  land.^ 

17.  In  Tankerville  v.  Fawcet,^  Lord  Kenyon  declared,  that 
where  an  estate  comes  to  a  person,  subject  to  a  mortgage, 
although  the  mortgage  is  afterwards  assigned,  and  the  party 
covenants  to  pay'the  money,  his  personal  estate  is  not  bound. 
And,  a  devisee  having  voluntarily  charged  a  simple  contract 
debt  of  the  testator  upon  the  land  devised,  and  died  ;  held, 
the  debt  was  not  the  proper  debt  of  the  devisee,  and  his 
personal  estate  was  not  liable. 

18.  A  purchaser  of  a  mortgaged  estate  agreed  with  the 
mortgagor,  as  part  of  the  consideration,  to  pay  the  debt  to 
the  son  and  heir  of  the  mortgagee',  and  the  rest  of  the  price 
to  the  mortgagor.  He  also  covenanted  with  the  mortgagor 
to  this  effect,  and  that  he  would  indemnify  him  from  the 
mortgage.  The  purchaser  having  died,  leaving  a  will,  the 
devisee  brings  a  bill  in  equity  to  have  the  mortgage  dis- 
charged from  the  personal  estate.  Held,  the  bill  could  not 
be  maintained ;  that  the  personal  estate  is  never  chargeable 
in  equity,  unless  it  is  chargeable  in  law ;  that  the  pm-chaser 
took  the  estate  subject  to  the  charge,  but  the  debt,  as  to  him, 
was  real,  not  personal ;  and  that  his  contract  with  the  mort- 
gagor was  a  mere  contract  of  indemnity,  which  the  law 
would  have  implied,  though  not  expressly  madc.-^ 

19.  An  estate  lield  by  a  lease  for  lives,  subject  to  a  charge 
of  £2,200  to  one  A.,  was  conveyed  subject  to  this  charge,  and 


1  SiKifto  V.  Shafto,  2  r.  Wms.  6G4,       »  Tweddell  v.  Twcddcll,  2  Bro.  101, 
n.  1.  152. 

-  2  Bro.  57. 


CH.  XIY.]  FUND    FOR   PAYMENT,    ETC.  349 

to  another  of  <£900  to  B.,  by  an  indenture  to  which  A.  was  a 
party,  and  in  which  the  purchaser  covenanted  to  pay  both 
charges.  The  purchaser  paid  the  debt  to  B.,  and  afterwards 
gave  bond  to  pay  A.  the  interest  of  her  claim  for  her  life,  and 
the  principal  at  his  death.  The  lease  having  been  repeatedly 
renewed,  the  purchaser  died,  having  devised  the  estate  to  two 
of  the  defendants,  and  appointed  two  others  of  the  defend- 
ants his  executors.  The  charge  being  called  in,  and  paid  to 
a  legatee  of  A.  by  the  executors,  the  defendants  were  called 
on  by  the  plaintiffs'  pecuniary  legatees,  who  were  unpaid,  to 
have  the  £2,200  replaced  by  the  devisees  of  the  land,  and 
paid  over  to  them.  Held,  notwithstanding  the  covenant  by 
the  purchaser  to  pay  the  debt,  contained  in  an  instrument  to 
which  A.,  the  holder  of  the  debt,  was  a  party,  and  the  subse- 
quent bond,  changing  and  extending  the  original  time  of 
payment,  the  nature  of  the  debt  was  not  altered,  but  it  con- 
tinued primarily  a  charge  upon  the  land ;  that,  though  the 
purchaser  became  personally  liable,  this  did  not  subject  his 
personal  estate,  because  no  such  intention  appeared ;  and 
the  defendants  were  decreed  to  pay  over  the  money.^ 

20.  It  seems,  to  charge  the  personal  estate,  the  assumption 
of  the  debt  must  be  accompanied  with  evidence  of  an  inten- 
tion to  assume  it  as  a  personal  debt,  detached,  as  it  were, 
from  the  land.^ 

21.  In  the  case  of  Mattheson  v.  Hardwicke,'^  there  was  a 
devise  to  two  persons,  charged  with  debts  and  legacies.  One 
of  the  devisees  paid  the  whole  except  one  legacy,  for  which 
he  gave  his  note.  It  appeared  that  he  had  paid  off  the  other 
incumbrances,  in  order  to  relieve  the  land  from  them  entirely. 
The  devisee  having  died,  held,  the  note  was  merely  collateral 
security,  and  the  land  the  primary  fund  for  payment  of  the 
legacy. 

22.  The  question  in  many  of  the  cases  seems  to  be,  not 
whether  the  party  acquiring  the  estate  mortgaged  or  charged 

1  Billin^hurst  v.  Walker,  2  Bro.  604.  3  2  r.  Wms.  664,  n. 

2  3  Johiis.  Ch.  256. 

VOL.  I.  30 


350  THE   LAW   OF   MORTGAGES.  [CH.  XIV. 

has  made  himself  personally  liable  for  the  debt,  but  whether 
the  land  or  the  personal  estate  shall  be  treated  as  the  primary 
fund  for  payment.  The  distinction  is,  that  where  land  is 
mortgaged  as  security  for  the  mortgagor's  own  debt,  the  debt 
is  the  principal  and  the  mortgage  merely  collateral.  But  the 
purchaser  of  a  mortgaged  estate,  though  he  personally  assume 
and  covenant  to  pay  the  debt,  is  treated  as  a  debtor  only  in 
respect  to  the  land,  and  his  promise  is  considered  as  made  on 
account  of  the  land,  which  therefore  is  the  primary  fund  for 
payment.  The  cases  establishing  each  of  these  propositions 
are  said  to  be  equally  numerous  and  decisive.^ 

23.  The  owner  of  land,  having  mortgaged  it  to  raise  money 
for  his  son,  conveyed  the  land,  subject  to  the  mortgage,  to 
the  use  of  the  son,  who  joined  with  his  father  in  a  covenant 
to  pay  the  money.  The  land  was  afterwards  reconveyed  to 
the  father,  who  covenanted  to  discharge  the  mortgage,  and 
afterwards  borrowed  a  further  sum  from  the  mortgagee,  and 
made  a  new  mortgage  for  the  whole  debt.  A  question  aris- 
ing between  the  heir  and  personal  representative  of  the  mort- 
gagor, which  should  pay  the  debt ;  Lord  Alvanley,  Master  of 
the  Rolls,  held,  that  though  the  debt  belonged  to  the  son  pri- 
marily in  equity,  and  to  the  father  and  son  together  at  law, 
the  father  had  made  it  his  own;  and  that  it  was  as  strong  a 
case  as  could  exist  without  an  express  declaration.  He  was 
careful  not  to  contradict  in  any  degree  the  principle  estab- 
lished in  the  case  of  Tweddell  v.  Tweddell,  which  was  a  very 
governing  case.  In  that  case  there  was  no  communication 
with  the  mortgagee,  but  only  a  covenant  of  indemnity,  and 
the  purchaser  did  not  thereby  personally  assume  the 
debt.2 

24.  In  Butler  v.  Butler,^  the  purchaser  of  a  mortgaged 
estate  agreed  with  the  vendor  to  pay  the  mortgage  debt,  and 
a  further  sum  to  the  vendor,  but  there  was  no  communication 
with  the  mortgagee.     The  authority  of  Tweddell  v.  Twed- 


1  3  Johns.  Ch.  250,  257.  8  5  Ves.  534. 

'•'  Woods  V.  Iluntingfoni,  3  Vcs.  128. 


CH.  XIV.]  FUND    FOR  PAYMENT,    ETC.  361 

dell,  was  recognized,  to  show  that  the  debt  was  primarily 
chargeable  upon  the  land,  and  did  not  become  the  debt  of 
the  purchaser,  as  a  personal  liability.  Lord  Alvanley  col- 
lected from  the  decisions  that  the  purchaser  of  land,  charged 
with  a  debt,  by  a  mere  covenant  to  indemnify  the  vendor, 
does  not  make  the  debt  his  own,  except  in  respect  to  the 
estate ;  and  the  estate,  and  not  his  personal  property,  must 
bear  it.  The  purchaser  might  be  circuitously  liable  to  the 
vendor  for  his  indemnity,  but  in  such  case  the  decree  would 
have  been  for  a  sale  of  the  land. 

25.  In  the  case  of  Waring  i\  Ward,^  the  purchaser  of  an 
estate  mortgaged,  borrowed  a  further  sum,  for  which  he  gave 
a  new  bond  and  mortgage.  After  his  decease,  held,  the  debt 
should  be  paid  from  the  personal  estate,  because  the  personal 
contract  was  primary,  and  the  real  contract  only  secondary. 
Lord  Eldon,  in  giving  judgment,  remarked,  that  in  general 
the  personal  estate  was  primarily  liable,  because  the  contract 
was  primarily  a  personal  one,  and  the  land  bound  only  in  aid 
of  the  personal  obligation  ;  that  Lord  Thurlow  carried  the 
doctrine  so  far  as  to  hold,  that  if  the  purchaser  of  an  equity 
of  redemption  covenants  to  pay  the  mortgage  debt,  and  also 
to  raise  the  interest  from  four  to  five  per  cent.,  yet,  as  between 
his  real  and  personal  representatives,  even  the  additional 
interest  is  not  primarily  a  charge  upon  the  personal  estate, 
being  incident  to  the  charge ;  that,  even  without  any  express 
covenant,  the  purchaser  of  an  equity  is  bound  to  indemnify 
the  vendor  against  any  personal  obligation,  and  pay  a  debt 
charged  upon  the  land ;  that  the  case  of  Tweddell  v.  Twed- 
dell  proceeded  upon  the  ground,  that  the  debt  due  the  mort- 
gagee was  never  a  debt  directly  from  the  purchaser  ;  that  if 
Lord  Thurlow  was  right  upon  the  fact,  the  case  was  a  clear 
authority,  that  the  purchase  of  an  equity  will  not  make  the 
mortgage  debt  the  debt  of  the  purchaser,  and  in  his  hands  it 
is  the  debt  of  the  estate^  and  a  mortgage  interest,  as  between 
his  representatives. 

1  5  Ves.  670 ;  7.  332. 


352  THE   LAW    OF   MORTGAGES.  [CH.  XIV. 

26.  In  the  case  of  the  Earl  of  Oxford  v.  Lady  Rodney,^ 
the  testator  purchased  an  estate  subject  to  mortgage,  paid 
the  surplus  of  the  price  to  the  vendor,  and  then  covenanted 
with  the  mortgagee  to  pay  him  the  mortgage  debt.  After 
his  death,  upon  the  question  whether  the  personal  estate 
should  go  to  pay  the  debt,  Sir  William  Grant,  Master  of 
the  Rolls,  remarked,  that  it  was  not  very  easy  to  reconcile 
the  case  of  Tweddell  v.  Tweddell  with  the  decision  of  Lord 
Hardwicke  in  Parsons  v.  Freeman,  that  where  the  mortgage- 
money  is  taken  as  part  of  the  price,  the  charge  becomes  a 
debt  from  the  purchaser.  But  he  admits  the  correctness  of 
Lord  Thurlow's  principle,  where  the  contract  of  the  pur- 
chaser gives  the  mortgagee  no  direct  and  immediate  right 
against  himself,  but  is  a  mere  contract  of  indemnity,  (e) 

27.  From  this  series  of  cases  Chancellor  Kent  deduces  the 
general  principle,  that  a  covenant  by  the  purchaser  of  an 
equity  of  redemption,  to  indemnify  the  vendor  against  the 
mortgage,  does  not  make  the  debt  his  own,  so  as  to  charge 
it  primarily  upon  his  personal  assets.  To  have  this  effect, 
there  must  be  a  direct  communication  and  contract  with  the 
mortgagee,  and  some  decided  evidence  of  an  intent  prima- 
rily to  charge  the  personal  estate  ;  as  where  the  original  con- 
tract is  essentially  changed,  and  lost  or  merged  in  the  new 
and  distinct  engagement  with  the  mortgagee ;  and  the  party 
shows,  that  he  meant  to  assume  the  debt,  absolutely  and  at 
all  events,  as  his  own  personal  liability.^ 

28.  The  following  are  the  most  recent  English  cases  upon 
the  subject  under  consideration. 

29.  A  testator,  by  his  marriage  settlement,   after  reciting 

1  14  Ves.  417.  2  3  Johns.  Clia.  261,  2G2. 


((?)  Upon  these  observations  Chanccller  Kent  remarks,  (3  Johns.  Cha. 
260,  '2G1,)  that  the  mortgage  debt  is  always /jo ?7  of  the  price,  unless  the  ven- 
dor agrees  to  remove  the  incumbrance.  By  liis  covenant  of  indemnity,  the 
purchaser  takes  the  land  cum  onere,  and  the  value  of  the  incumbrance  is  of 
course  deducted  from  the  value  of  the  land. 


CH.  XIV.]  FUND   FOR  PAYMENT,  ETC.  863 

that  he  was  seized  in  fee  of  certain  estates,  subject  to  mort- 
gage debts,  the  amount  of  which  was  mentioned,  and  which 
he  had  contracted,  settled  the  estates,  subject  expressly  to 
the  debts,  on  himself  for  life,  remainder  to  secure  a  jointure 
for  the  wife,  remainder  to  the  first  and  other  sons  of  the 
marriage  in  tail  male,  remainder  to  himself  in  fee,  and  cove- 
nanted for  the  title,  excepting  the  debts  ;  and  he  reserved  to 
himself  the  power  of  raising  .£10,000  by  mortgage,  to  be 
made  redeemable  by  the  person  for  the  time  being  entitled 
to  the  freehold  or  inheritance.     The  testator  exercised  the 
power,  reserving  the  equity  of  redemption  to  himself,  his 
heirs,  executors,  &c.,  or  the  person  for  the  time  being  enti- 
tled, as  aforesaid,  and  covenanted  to  pay  the  mortgage  debt. 
He  then  died  without  issue,  having  by  his  will  charged  his 
real  and  personal  estate  with  his  debts,  and  bequeathed  the 
residue  of  his  personal  estate  after  payment  of  his  debts,  and 
devised  his  remainder  in  fee  expectant  on  the  failure  of  his 
issue  male  to  his  brother  and  his  brother's  sons  in  strict  set- 
tlement.    Held,  they  were  not  entitled  to  have  his  personal 
estate  applied  to  exonerate  the  devised  estates  from  any  of 
the  mortgage  debts.'     Shadwell,  V.  C,  says:^—"  The  diffi- 
culty in  this  case  is,  that  if  you  claim  the  benefit  of  the  com- 
mon rule,  then  you  will  have  the  personal  estate  of  the  set- 
tlor applied  to  exonerate  the  whole  inheritance  ;  and  there- 
fore it  will  be  applied  contrary  to  the  intention  of  the  settlor. 
For  his  widow  is  still  alive,  and  therefore  the  effect  will  be 
to  exonerate  the  settled  estates  in  her  favor.     As  the  settle- 
ment was  made  so  as  to  manifest  an  intention,  on  the  part  of 
the  settlor,  that  the  whole  inheritance  should  bear  the  mort- 
gages, I  think  that  that  intention,  having  been  once  plainly 
manifested,  must  be  considered  as  existing  until  it  is  shown 
to  have  been  altered.     And  as  there  is  nothing  in  this  case 
which  shows  that  thaf  intention  was  ever  changed,  my  opin- 
ion is  that  the  common  rule  does  not  apply." 

30.  A  testator  gave  to  his  wife  certaiii.  specific  articles  of 

1  Ibbetson  v.  Ibbetson,  12  Sim.  206.  -  lb.  216,  217. 

30* 


354  THE   LAW   OP  MORTGAGES.  [CH.  XIV. 

personal  property,  and  certain  portions  of  real  estate  free 
from  the  mortgages  thereon,  and  the  benefit  of  certain  con- 
tracts for  the  purchase  of  other  lands.  He  devised  the  rest 
of  his  real  estates,  in  trust  to  the  devisee  to  sell,  and  from 
the  proceeds  pay,  first,  his  funeral  and  testamentary  expenses, 
his  debts  due  on  the  mortgages  of  the  estates  devised  to  his 
wife,  the  sums  due  on  the  contracts,  and  all  his  other  debts ; 
and  in  the  next  place,  he  directed  certain  sums  to  be  paid 
from  the  proceeds  to  different  persons,  and  gave  the  residue 
to  another  legatee,  and  appointed  his  wife  sole  executrix. 
Held,  the  personal  estate  was  exonerated  from  the  debts.^ 

31.  A  testator,  having  mortgaged  an  estate  for  £4,460, 
devised  it  in  fee,  the  devisee  "  paying  the  mortgage  thereon;" 
and  devised  his  residuary  real  and  personal  estates  to  trus- 
tees for  payment  of  debts,  and  gave  to  the  mortgagee,  through 
his  executors,  .£2,000  to  exonerate  the  estate.  Held,  if  he 
had  simply  devised  "  the  estate,"  or  "  the  estate  subject  to 
the  mortgage  thereon,"  the  mortgage  would  have  been  pay- 
able from  his  general  estate.  But  the  words,  "  he  paying," 
&c.,  imposed  a  duty  on  the  devisee,  and  constituted  a  direc- 
tion or  condition  that  he  should  pay  the  mortgage,  or  take 
the  estate  subject  to  the  mortgage,  over  and  above  the 
£2,000.2 

32.  A  mortgagee  made  a  sub-mortgage  of  the  estate,  and 
then  devised  it,  and  bequeathed  to  the  sub-mortgagee, 
through  his  executors,  a  certain  sum,  to  clear  the  estate  in 
part.  After  his  death,  the  sub-mortgagee  foreclosed.  Held, 
the  devisee  was  entitled  to  the  sum  bequeathed.^ 

33.  "  If  an  estate  descend  to  the  heir,  subject  to  a  mort- 
gage, and  he  become  a  party  to  an  assignment  of  the 
mortgage,  and,  by  bond  or  covenant,  contract  with  the  as- 
signee to  pay  the  amount  due,  he  does  not  thereby  make  it 
his  personal  debt,  as  between  his  heir  and  executor.  As 
between    those    parties,  the   mortgaged  estate   remains  the 


1  Blount  V.  Hipkins,  7  Sim.  4.1.  ^  Hjjd. 

^  Lockluirt  V.  Hardy,  9  Bctvv.  .379. 


CH.  XIV.]  FUND   FOR   PAYMENT,   ETC.  355 

primary  fund  for  the  payment  of  the  mortgage  debt ;  and 
the  bond  or  covenant  of  the  heir  of  the  mortgagor  is  consid- 
ered merely  as  an  auxiliary  security  to  the  assignee."  ^  • 

34.  If  one,  having  several  leaseholds,  mortgage  one  of  them, 
and  then  bequeathe  them  separately  to  different  parties,  and 
direct  his  debts  to  be  paid  from  his  residuary  personal  estate, 
which  proves  insufficient  for  the  purpose  ;  the  legatee  of  the 
estate  mortgaged  must  take  it  cum  onere,  and  cannot  claim 
contribution  from  the  other  legatees.^ 

35.  But  where  several  estates,  subject  to  distinct  mort- 
gages, were  specifically  devised  to  different  persons,  with  a 
direction  that  the  mortgages  should  be  discharged  from  the 
personal  estate,  so  that  the  devisees  might  hold  the  estates, 
freed  therefrom  ;  and  the  personal  assets  proved  deficient  for 
payment  of  the  mortgage  and  other  debts  ;  a  decree  was 
made,  that  the  mortgage  and  other  specialty  debts  should 
first  be  paid  from  the  personal  assets  pj'o  rata,  that  the  resi- 
due of  the  mortgage  debts  should  be  borne  by  the  respective 
estates  to  which  they  belonged,  and  the  deficiency  of  the 
other  specialty  debts  and  the  simple  contract  debts,  by  the 
several  devised  estates  and  the  specifi«  legacies,  pro  rata.^ 

36.  In  general,  on  a  deficiency  of  other  assets  for  payment 
of  mortgage  debts,  each  devisee  takes  his  estate  cum  onere. 
But  where  different  mortgaged  estates  form  part  of  a  general 
mass  of  property,  which  is  devised  charged  with  debts,  these 
estates,  on  failure  of  other  assets,  shall  contribute,  in  propor- 
tion to  their  respective  values,  to  pay  off  the  mortgages,  as 
well  as  the  other  remaining  debts."* 

37.  A  mortgagor,  by  his  will,  ordered  payment  of  his  debts, 
and  devised  his  residuary  lands,  including  the  land  mort- 
gaged and  all  his  residuary  personal  property,  to  his  oldest 
son,  who  was  the  executor.  The  son  dies  intestate,  the 
mortgage  not  being  paid.     The  father  and  son  leave  suffi- 

1  Per  Leach,  M.  R.,  Biirliam  v.  Tha-  ^  Svmons  v.  James,  2  Y.  &  Coll.  (N. 
net,  3  My.  &  K.  622.  S.)  3U1. 

2  Ilalliwell  1-.  Tanner,  1  Russ.  &  Mv.  *  Coote,  548. 
633. 


356  THE  LAW   OF   MORTGAGES.  [CH.    XIV. 

cient  personal  property  to  pay  the  mortgage.  Held,  as  be- 
tween the  heir  and  administrator  of  the  son,  the  mortgaged 
estate  was  the  primary  fund  for  payment.^ 

38.  Personal  estate  will  not  be  primarily  applied  to  the 
prejudice  of  legatees,  except  residuary  legatees,  or  of  credi- 
tors.    So  the  paraphernalia  of  the  widow  are  exempted.^ 

39.  A  specific  devisee  of  mortgaged  estate  shall  have  the 
estate  exonerated  from  the  debt,  as  against  a  residuary  lega- 
tee, though  such  estate,  and  the  residue,  are  both  given  freed 
from  debt ;  if  the  fund  provided  by  will  for  the  payment  of 
debts  proves  insufficient.^ 

40.  The  administrator  of  an  insolvent  estate  is  neither 
requked  nor  allowed  to  apply  the  personal  assets  to  the 
redemption  of  a  mortgage  made  by  the  intestate.* 

41.  In  the  case  of  Haven  v.  Foster,^  Morton,  J.,  remarked  : 
"  By  the  common  law,  the  heir  is  entitled  to  the  aid  of  the 
personal  property  of  the  mortgagor  in  paying  off  mortgages ; 
but  if  the  heir,  without  making  application  for  aid  in  redeem- 
ing, disposes  of  the  mortgaged  estate,  he  cannot  afterwards 
come  upon  the  personal  estate  for  assistance.  And  no 
authority  was  cited  ox  has  been  found,  which  requires  the 
administrator  in  England  to  redeem  mortgaged  estates  in 
foreign  countries.  But,  on  the  contrary,  it  is  very  clear,  that 
such  administrator  would  have  no  power  to  do  any  act,  as 
such,  out  of  the  kingdom.  So  an  executor  or  administrator, 
appointed  in  this  State,  has  no  authority  beyond  its  limits. 
He  would  have  no  power  to  make  a  tender  in  any  other 
State,  nor  could  he  resort  to  any  legal  process,  to  compel  the 
mortgagee  to  accept  a  satisfaction  of  the  debt  or  discharge 
the  mortgage.  The  law  imputes  negligence  to  no  man  for 
not  doing  that  which  he  has  no  legal  power  to  do.  It  is  true, 
that  if  the  mortgagee  had  chosen,  he  might  not  only  have 
compelled  the  administratrix  to  pay  out  of  the  estate  here, 

1  Clarendon  v.  Barham,  1  Y.  &  Coll.  ^  Brooke  v.  Warwick,  1  Ilall  &  Tw. 
688.  142. 

^  Coote,  540.  ■*  Gil>son  v.  Crehorc,  .5  Pick.  14G. 

6  9  rick.  133,  134. 


en.  XIV.]  FUND    FOR   PAYMENT,   ETC.  357 

but  he  might  voluntarily  have  accepted  payment  of  her,  and 
given  her  a  valid  discharge.  But  he  could  not  have  been 
compelled  to  do  either.  He  had  the  power,  at  his  own  elec- 
tion, either  to  commence  process  upon  the  mortgage  itself,  or 
to  take  out  administration  in  the  State  where  the  mortgaged 
land  was,  and  in  the  one  way  or  the  other  to  obtain  satisfac- 
tion of  the  debt  from  the  estate  itself.  As  the  administratrix 
had  not  the  power  to  prevent  him  from  adopting  either  of 
these  courses,  so  her  omission  to  do  it,  or  to  attempt  to  do  it, 
did  not  amount  to  waste." 


358  THE   LAW   OF   MORTGAGES.  [CH.  XV. 


CHAPTER   XV. 


EQUITY    OF   REDEMPTION. 


1.  Definition  and  nature  of  an  equity  I     38.  And  liable  to  legal  process, 
of  redemption.  j      42.  But  it  is  not  thus  liable,  in  a  suit 

3.  Distinction   between  an  equity  of  upon  the  mortgage  debt;  cases  and  dis- 


redemption  and  a  trust. 

13.  Who  may  redeem  a  mortgage. 

25.  Against  whom  redemption  may 
be  claimed. 

28.  Redemption  in  case  of  the  death- 
of  the  mortgagor. 

31.  Redemption  by  a  party  having  a 
partial  interest  in  the  property ;  claim 
for  reimbursement. 

37.  An  equity  of  redemption  is  assets. 


tinctions  upon  this  subject. 

5G.  Whether  the  indorsee  of  a  mort- 
gage note  may  levy  upon  the  equity  of 
redemption. 

60.  Curtesy  in  an  equity  of  redemp- 
tion. , 

61.  Whether  subject  to  dower;  Eng- 
lish and  American  law  upon  this' subject. 

88.  On  what  terms  the  widow  may 
redeem. 


1.  In  the  previous  chapters,  treating  of  the  respective 
estates  of  mortgagor  and  mortgagee,  it  has  of  course  been 
found  necessary  to  explain  the  nature  of  that  title  which  the 
law  denominates  an  equity  of  redetnption.  We  propose  now, 
however,  to  consider  the  subject  in  more  minute  detail,  and 
distinctly  point  out  the  qualities,  rights,  and  obligations  inci- 
dent to  this  somewhat  anomalous  interest  in  real  property. 

2.  It  is  said,^  an  equity  of  redemption  can  be  more  appro- 
priately illustrated  than  defined  or  described.  While  some 
learned  judges  have  called  it,  in  the  eye  of  a  court  of  equity, 
the  fee-simple  of  the  land,  others  have  spoken  of  it  as  nothing' 
at  all  in  the  eye  of  the  law?  (a) 

1  1  Pow.  250  ?.,  n.  A. 

^  Sec  Burgess  v.  Wheate,  1  W.  Bi.  145  ;  Preston  v.  Christmas,  2  Wils.  86. 


(r/)  It  is  said,  an  equity  is  an  estate  or  interest  in  the  land,  reserved  or 
retained  by  the  tenant.     Viscount,  &c.  v.  Morris,  3  Hare,  407. 

So,  in  an  earlier  case,  that  an  equity  is  an  estule ;  it  may  be  devised, 
granted,  or  entailed  with  remainders,  ■which  may  be  barred  by  fine  and  re- 
covery ;  not  a  mere  right.     It  is  a  seizin;  the  mortgagor  is  owner  —  the 


CH.  XV.]  EQUITY   OP  REDEMPTION.  359 

3.  An  equity  of  redemption,  being,  as  the  name  imports, 
an  estate  fully  recognized  only  by  Courts  of  Equity,  has  of 
course  many  qualities  in  common  with  a  trust,  which  is  also 
peculiarly  a  subject  of  the  same  jurisdiction.  The  mortgagee 
is  called  a  trustee  for  the  mortgagor,  subject  to  the  security.^ 
So  it  has  been  said,^  that  a  mortgagee,  after  receiving  his 
debt,  is  considered  as  a  trustee  of  the  estate  for  the  mort- 
gagor till  a  reconveyance.  So  a  mortgage  and  a  conveyance 
in  trust  by  waij  of  security  are  said  to  be  alike  in  this  respect, 
and  in  being  redeemable  at  any  time  before  sale,  but  not 
after.^  The  following  points  of  distinction  have  been  sug- 
gested between  these  respective  titles. 

4.  An  equity  of  redemption  is  a  title  in  equity,  not  merely 
a  trust ;  *  although,  as  is  said,  this  title  cannot  be  asserted 
except  by  suhpcEiial^ 

5.  A  mortgage  does  not  -per  se  create  a  trust,  more 
especially  before  condition  broken.  It  conveys  the  estate, 
subject  to  a  condition.  It  is  founded  on  contract.  The  mort- 
gagee is  not  accountable  to  any  one,  until  he  enters,  takes 
possession,  and  receives  the  rents  and  profits  ;  in  which  case 
he  may,  in  some  sense,  be  considered  as  trustee,  for  he  is  to 

1  Silvester  v.  Jarman,  10  Price,  84.     Little  v.  Brown,  2  Leigh,  353;  Belly. 


See  Coates  v.  Woodworth,  13  111.  654 
King  V.  Tlie  Merchants,  &c.,  1  Seld 
547  ;    Cliarles    v.    Clagett,   3    Md.    82 


Hammond,  lb.  416. 

^  Reading  of  Judge   Trowbridge,  8 
Mass.  411. 


Chowning  v.  Cox,  1  Rand.  306  ;  Mor-  ^  Hogan  v.  Lepretre,  1  Port.  392. 

gan  V.  Morgan,  10  Geo.  297.     As  to  *  1  Sand.  Uses,  203;  1  Ed.  206.    See 

the  respective  rights  and  duties  of  the  Dobson  v.  Land,  14  Jur.  288. 

parties,  growing  out  of  a  mortgage  and  ^  Viscount,   &c.   v.   Morris,  3  Hare, 

conveyance  in  trust  of  the  same  land,  see  402. 


mortgage  personal  estate,  which  -will  not  pass  by  a  devise  of  lands,  tene- 
ments, and  hereditaments.  Casborne  v.  Scarfe,  1  Atk.  605,  606.  It  descends 
to  the  heir.  Asay  v.  Hoover,  5  Barr,  21.  In  Ellithorp  v.  Dewing,  (1  Chipm. 
143,)  it  was  held,  that  a  release  of  the  equity  of  redemption  by  mortgagor  to 
mortgagee,  made  while  a  third  person  was  in  possession,  claiming  adversely 
to  both,  was  not  within  the  act  to  prevent  fraudulent  speculations  and  sales 
of  choses  in  action.  So  an  assignment  by  the  mortgagor  of  his  interest  is 
not  champerty,  though  the  mortgagee  be  in  possession.  Borst  v.  Boyd, 
3  Sandf.  Cha.  501.     But  see  King  v.  The  State,  &c.,  7  Cush.  7.     . 


360  THE   LAW   OF   MOKTGAGES.  [CH.  XV. 

render  an  account ;  but  this  must  be  done  in  the  manner  and 
fox  the  pm'poses  provided  in  the  several  statutes  for  redeem- 
ing mortgages,  and  he  is  not  trustee  in  any  other  light. 
Hence,  under  the  statute  giving  equity  jurisdiction  of  trusts 
to  the  Supreme  Court  in  Massachusetts,  the  assignee  of  a 
mortgagor  cannot  maintain  a  bill  for  injunction  against  the 
mortgagee,  who  is  proceeding  to  recover  possession  at  law ; 
and  for  a  decree,  that  the  mortgage  be  cancelled.^  So  a 
mortgagee,  iiotwithstanding  his  relation  to  the  mortgagor, 
may  buy  the  land,  under  a  mortgage  sale,  at  a  low  price,^ 
which  a  trustee  would  not  be  permitted  to  do.  The  princi- 
ples applicable  to  dealings  between  trustees  and  cesluis  que 
trust,  that  such  dealings  are  not  prohibited,  but  are  watched 
by  the  Court  with  great  jealousy,  and  that  the  burden  is  on 
the  trustee  to  show  that  they  were  fair  and  reasonable,  do 
not  apply  to  the  case  of  mortgagor  and  mortgagee.  Depend- 
ence, and  the  duty  of  protection,  are  not  involved  in  then- 
relation  ;  t)ut  it  is  a  circumstance  which  always  creates  sus- 
picion.^ 

6.  In  regard  to  the  distinction  between  a  mortgage  and  a 
trust  ah-eady  referred  to,  that  a  mortgagee  may  enforce  his 
right  by  adverse  suit,  in  invitum,  against  the  mortgagor,  it  is 
further  said,  that  a  trustee  cannot  claim  against  the  cestui, 
because  these  parties  have  always  an  identity  and  unity  of 
interest,  and  are  never  opposed  in  contest  to  each  other.  In 
general,  a  trustee  is  not  allowed  to  deprive  his  cestui  que  trust 
of  the  possession ;  but  chancery  never  interposes  to  prevent 
the  mortgagee  from  taking  possession  ;  and,  when  he  obtains 
possession,  he  acts,  not  as  a  trustee,  but  independently  and 
adversely,  for  his  own  use  and  benefit.  Equity  stops  a  trus- 
tee from  dispossessing  his  cestui,  because  it  would  be  a 
breach  of  trust,  whereas,  in  the  case  of  a  mortgagee,  this  pro- 
ceeding  is  in  strict  conformity  to  his  contraqt,  and  any  im- 

1  Hunt  V.  Mavnanl,  0  Tick.  489.    Sec  Tostcr,  8  Met.  19  ;  King  v.  The  State, 

Ilammonils  v.  Hopkins,  3  Ycrg.  r^lS;  &c.,  7  Cush.  7,  8,  15. 

Clarke  v.  Siblev,  L'l  Met.  21. '5;  rutnain  ^  Mott  v.  Walklcy,  3  Edw.  590. 

V.  I'utnam,  4  Tick.   139;  Ea.stiuan  v.  ='  Chapman  v.  Mull,  7  Ired.  Eq.  292. 


CH.  XV.]  EQUITY  OF  REDEMPTION.  361 

pediment  to  it  would  be  a  direct  violation  of  such  contract. 
So  also  chancery  does  not  impede,  but  assist,  the  mortgagee, 
in  obtaining  an  absolute  title  by  foreclosure.^ 

7.  In  the  case  of  Pawlett  v.  The  Attorney- General,^  Hale, 
Chief  Baron,  said  : — r"  There  is  a  diversity  betwixt  a  trust 
and  a  power  of  redemption,  for  a  trust  is  created  by  the 
contract  of  the  party,  and  he  may  direct  it  as  he  pleaseth ; 
and  he  may  provide  for  the  execution  of  it,  and  therefore  one 
that  comes  in  in  the  post  shall  not  be  liable  to  it  without 
express  mention  made  by  the  party.  But  a  power  of  redemp- 
tion is  an  equitable  right  inherent  in  the  land,  and  binds  all 
persons  in  the  post  or  otherwise.  Because  it  is  an  ancient 
right,  which  the  party  is  entitled  to  in  equity.  And  although 
by  the  escheat  the  tenure  is  extinguished,  that  will  be  nothing 
to  the  purpose,  because  the  party  may  be  recompensed  for 
that  by  the  Court,  by  a  decree  for  rent,  or  by  part  of  the  land 
itself,  or  some  other  satisfaction.  And  it  is  of  such  consider- 
ation in  the  eye  of  the  law,  that  the  law  takes  notice,  of  it, 
and  makes  it  assignable  and  devisable." 

8.  So,  it  is  said,  the  relation  of  mortgagor  and  mortgagee 
stands  upon  grounds  peculiar  to  itself.  It  is  not  the  case  of 
an  ordinary  express  trust,  nor  to  be  governed  by  the  same 
rules.  The  mortgagee  has  a  right  to  the  possession  of  the 
property.  He  holds  it  for  himself  from  the  first,  and  not  for 
the  mortgagor.  The  mortgagor's  right  to  redeem  does  not 
depend  upon  the  mortgagee's  possession.  He  may  file  his 
bill  to  redeem,  as  well  if  he  have  possession  of  the  property 
himself,  as  if  the  mortgagee  possess  it.^ 

8  a.  Conformably  to  the  principles  above  stated,  a  convey- 
ance in  trust  to  pay  debts,  and  to  seU  the  premises,  if  neces- 
sary, to  pay  the  debts,  and,  after  the  debts  are  paid,  in  trust 
for  one  of  the  grantors,  is  not  a  mortgage,  and,  it  seems,  need 
not  be  registered,  as  against  a  subsequent  assignment  of  the 


1  2  Story's  Eq.  278,  n.  3.  s  Pd-  Green,  J.,  Wood  v.  Jones,  Meigs, 

2  Hardies,  469  ;  Tucker  v.  Thurstan,     517. 

17  Ves.  133;  Benzein  r.  Lenoir,  I  Dcv.  ^  , 

Ch.  225 ;  V.  Bennett,  lb.  444. 

VOL.    I.  31 


362  THE  LAAV   OF  MORTGAGES.  [CH.  XV. 

grantors,  under  the  bankrupt  law.^  And,  on  the  other  hand, 
under  the  laws  of  Georgia,  a  mortgage  is  not  a  conveyance 
in  trust,  but  an  incumbrance  created  to  pay  a  debt ;  neither 
is  it  an  assignment,  conveyance,  or  transfer,  under  the  act  of 
1818,  and  does  not  come  within  the  provisions  of  that  act.^ 

9.  Conveyance,  in  trust  that  the  estate  stand  chargeable 
with  a  certain  sum  and  interest,  and  subject  thereto  in  trust 
for  a  third  person,  with  a  power  of  sale  by  the  purchaser  upon 
non-payment  after  notice.  Held,  this  was  not  a  mortgage, 
upon  which  a  bill  for  foreclosure  could  be  maintained,  though 
the  Court  would  aid  in  effecting  a  sale  of  the  property.^ 

10.  But  a  covenant,  signed  by  both  parties  to  a  deed,  at 
the  same  time  with  the  deed,  and  reciting  "  an  understanding 
and  agreement  that  the  grantee  should,  as  soon  as  possible, 
sell  the  land  for  the  best  possible  price,  retain  a  sum  due  to 
him  from  the  grantor,  and  pay  him  the  residue,"  constitutes, 
with  the  deed,  a  conveyance  in  trust,  in  the  nature  of  a  mort- 
gage.^ (b)  And  if  the  grantee  violate  his  covenant  to  sell  the 
land,  the  grantor  may  recover  the  actual  damages  by  a  suit 
on  the  covenant  or  compel  performance  by  a  bill  in  equity ; 
but  cannot  elect  to  recover  the  value  of  the  land,  deducting 
the  debt,  thus  converting  a  conditional  into  an  absolute  con- 
veyance.^ 

11.  Deed  to  A.,  to  be  held  to  his  own  use  until  he  should 
be  paid  a  certain  sum,  advanced  by  him  for  B.,  the  purchaser, 
after  which  he  was  to  stand  seized  to  the  use  of  B.,  as  if  the 
title   had  been  made  directly  to  B.     A.  brought  ejectment 

1  M.  Menomy  v.  Murray,  3  Johns.  Ch.        ^  Sampson  r.  Pattison,  1  Hare,  533. 
435.  *  0<j(lcn  V.  Grant,  6  Dana,  473. 

2  Seals  V.  Casliin,  2  Geo.  Uccis.  76.  ^  Ibid. 


(Ij)  On  the  other  hand,  one  receiving  property  in  trust  may  bind  himself 
to  account  for  it  by  an  informal  mortgage.  A.  received  property  of  B.,  to 
invest  it  for  B.'s  benefit,  and  gave  liini  a  paper,  not  in  form  a  mortgage, 
acknowledging  such  receipt,  and  stating  that  certain  property  of  his  was 
mortgaged  to  secure  B.  Upon  the  death  of  A.,  insolvent,  held,  a  mortgage. 
Mcnnude  v.  Delaire,  2  Desaus.  564. 


CH.  XV.]  EQUITY   OF   REDEMPTION.  363 

against  B.,  to  compel  payment  of  the  moneys  advanced,  and 
judgment  was  confessed,  to  be  released  on  payment  of  a  cer- 
tain sum  in  a  certain  time.  For  non-payment,  A.  took  pos- 
session, and  B.  brought  ejectment.  Held,  A.  had  the  right 
to  take  possession,  and  hold  until  reimbursed,  arid  not  as 
absolute  owner  ;  that  the  deed  to  A.  was  not  properly  a  mort- 
gage, but  a  deed  of  trust,  in  which  the  cestui  que  trust  had 
the  same  right  which  a  mortgagor  has  against  a  mortgagee  ; 
that  A.  was  liable  to  account  for  the  profits,  towards  the  debt ; 
that  it  was  not  necessary  for  B.  to  tender  the  debt  in  money 
to  A.  before  bringing  his  suit ;  that  B.  was  entitled  to  recover, 
if  the  clear  profits  of  the  land,  since  it  came  into  A.'s  pos- 
session, equalled  the  judgment  and  interest ;  if  those  profits 
amounted  to  so  much  before  suit  brought,  B.  could  recover 
unconditionally  ;  but  if  not  to  so  much  until  after,  he  could 
recover,  on  condition  that  he  pay  all  the  costs  of  the  suit 
before  taking  out  execution.^ 

12.  It  is  the  right  and  duty  of  a  trustee,  in  insolvency,  to 
sell  the  mortgaged  property  of  his  insolvent,  and  pay  off  the 
liens  and  incumbrances  thereon ;  though  the  transfer  made 
to  secure  a  debt  is  in  the  nature  of  a  trust.^ 

12  a.  The  owners  of  several  estates,  being  jointly  inter- 
ested in  the  water-power  connected  therewith,  formed  a  com- 
pany and  entered  into  an  agreement,  by  indenture,  in  which 
each  covenanted,  for  himself  and  his  personal  representatives 
or  assigns,  with  the  others  and  their  respective  personal  rep- 
resentatives or  assigns,  and  his  and  their  respective  estates, 
for  the  faithful  performance  of  the  conditions  and  provisions 
of  said  indenture,  "  meaning  and  intending  to  create  a  lien 
upon  and  to  bind  "  their  said  estates,  so  far  as  "  they  might 
in  law  or  equity  do  the  same,  and  "  their  "  several  heirs,  exec- 
utors, administrators,  or  assigns,  so  far  as  said  estates  were 
concerned,  and  to  the  extent  thereof,  and  no  further,  as  fully 
and  absolutely  and  as  far  as  "  they  might  "  do  the  same, 

1  Hewitt  r.  Huling,  U  Pcnn.  27.  -  Bank,  &c.  v.Whyte,  1  Maryland  Ch. 

Decis.  536. 


364  THE   LAW   OF   MOKTGAGES.  [CH.  XV. 

either  in  law  or  equity,  for  the  faithful  discharge  and  fulfil- 
ment of  all  the  liabilities  of  said  company,  and  of  the  require- 
ments and  provisions  of  said  indenture."  The  plaintiff,  a 
party  to  the  indenture,  having  afterwards  incurred  expense, 
under  its  provisions,  for  the  purpose  of  increasing  the  water- 
power,  in  which  all  the  parties  to  the  indenture  were  jointly 
interested,  brings  a  bill  in  equity  against  third  persons,  to 
whom  some  of  the  parties  had  conveyed  their  estates,  praying 
that  they  might  be  held  to  pay  him  their  shares  and  propor- 
tions of  the  expense,  and  for  general  relief.  Held,  the  inden- 
ture was  not  a  legal  mortgage,  but  only  an  equitable  mort- 
gage ;  that  if  it  created  any  lien,  implying  a  trust,  it  was  a 
trust  sin  generis,  in  the  nature  of  an  equitable  mortgage,  of 
which  the  Court  had  no  jurisdiction;  and  the  bill  was  dis- 
missed.^ 

13.  With  regard  to  the  parties,  who  are  allowed  to  redeem 
a  mortgage ;  in  general,  any  one  may  do  it,  who  is  entitled 
to  the  legal  estate  of  the  mortgagor,  or  claims  a  subsisting 
interest  or  lien  under  him.  Lord  Eldon  remarked,^  that  a 
mortgagee  shall  hold  the  land  against  all  persons,  who  fail  to 
show  a  clear  right  of  redeeming.  It  is  said,  persons  entitled 
to  redeem  in  equity  are  those,  who  within  the  time  limited 
in  the  mortgage  would  have  been  entitled  to  redeem  at  law.^ 
So  also,  that  by  agreement,  a  right  to  redeem  may  be  reserved 
to  a  stranger^ 

13  a.  The  grantee  of  a  mortgagor  may  file  a  bill  to  redeem 
and  have  the  mortgage  satisfied,  though  a  part  of  the  mort- 
gage debt  has  become  due  to  other  parties.  And  where  a 
party  acquires  a  claim  to  rents  and  profits,  subsequently  to  a 
decree  for  the  sale  of  property,  in  favor  of  one  who  hac  become 
entitled  to  part  of  the  money  due  on  the  mortgage,  he  may 
set  up  such  claim  in  a  bill  to  redeem.^ 


1  Clarke  v.  Sibley,  13  Met.  210.  «  Skcffington  v.  Whitcliurst,  3  Y.  & 

■■^  James  x\  Biou,3  Swanst.  237  ;  Pur-  Coll.  2. 

vis  V.  Brown.  4  Ircd.  ICq.413  ;  Hoarnian  *  J'lirvis  v.  Brown,  4  Ircd.  Eq.  413. 

V.  Catlett,  13  Sm.  &  M.  149;  Scott  v.  '' McConnel  v.   Holobush,    11    lllin. 

Henry,  8  Eii^'.  112.  61. 


CH.  XV.]  EQUITY   OF   REDEMPTION.  365 

14.  Judge  Story  says  :  —  "  The  equity  of  redemption  is  not 
only  a  subsisting  estate  and  interest  in  the  land,  in  the  hands 
of  the  heirs,  devisees,  assignees,  and  representatives  (strictly 
so  called)  of  the  mortgagor ;  but  it  is  also  in  the  hands  of 
any  other  persons,  who  have  acquired  any  interest  in  the 
lands  mortgaged,  by  operation  of  law  or  otherwise,  in  privity 
of  title.  Such  persons  have  a  clear  right  to  disengage  the 
property  from  all  incumbrances,  in  order  to  make  their  own 
claims  beneficial  or  available.  Hence,  a  tenant  for  life,  a 
tenant  by  the  curtesy,  a  jointress,  a  tenant  in  dower  in  some 
cases,  a  reversioner,  a  remainder-man,  a  judgment  creditor,  (c) 
a  tenant  by  elegit,  and  indeed  every  other  person,  being  an 
incumbrancer,  or  having  a  legal  or  equitable  title  or  lien 
therein,  may  insist  upon  the  redemption  of  the  mortgage,  in 
order  to  the  due  enforcement  of  their  claims  and  interests 
respectively  in  the  land.  When,  any  such  person  does  so 
redeem,  he  or  she  becomes  substituted  to  the  rights  and  inter- 
ests of  the  original  mortgagee  in  the  land,  exactly  as  in  the 
civil  law.  And  in  some  cases  (as  we  have  already  seen)  a 
further  right  of  priority  by  tacking  may  sometimes  be  acquired 
beyond  what  the  civil  law  allowed.  Hence  it  is,  that  a  mere 
annuitant  of  the  mortgagor,  (who  has  no  interest  in  the  land,) 
has  no  title  to  redeem."  i  So,  an  unsealed  contract  gives  no 
right  to  redeem.2  But  even  a  person  claiming  under  a  prior 
or  subsequent  voluntary  conveyance  may,  as  against  the 
mortgagee,  redeem.^ 

1  2  Story's  Eq.  §   1023  ;    Upham  v.        -  Porter  v.  Read,  1  Appl.  363. 
Brooks,  2  W.  &  M.  407.  3  2  Story's  Eq.  §  1023,  n. 


(c)  By  filing  a  bill  against  mortgagee  and  mortgagor.  Hitt  v.  Holliday, 
2  Litt.  334.  A  creditor,  until  he  has  recovered  judgment  for  his  debt,  can- 
not come  into  chancery  for  the  foreclosure  of  mortgages.  Warner  v.  Ever- 
ett, 7  B.  Mon.  2G2.  Nor  can  a  bond  creditor  redeem,  till  he  recovers  a 
judgment.  1  Pow.  263,  n.  The  judgment  creditor  of  a  deceased  mortgagor 
cannot  redeem,  till  after  iilene  admin,  has  been  pleaded,  and  judgment 
rendered  against  the  heir  upon  sc.  fac.     EUiot  v.  Patton,  4  Yerg.  10. 

31* 


366  THE  LAW   OF  MORTGAGES.  [CH.  XV. 

15.  The  assignee  of  a  bankrupt  may  redeem.  So,  even  a 
proivling-  assignee,  who  purchases  an  equity  which  has  been 
abandoned  fifteen  years,  for  a  trifling  sum.^  So,  a  tenant  for 
years.2  (d)  So,  it  seems,  the  holder  of  an  easement.  In  New 
Hampshire,  an  attaching  creditor.^  So,  one  in  possession 
under  a  parol  contract  to  convey,  if  entitled  to  specific  per- 
formance, except  as  against  bond  fide  purchasers  without 
notice.* 

16.  But  a  creditor  who  has  foreclosed  a  mortgage,  and 
obtained  a  decree  for  sale,  does  not  thereby  become  a  judg- 
ment creditor,  and  entitled  to  redeem  from  the  purchaser, 
under  the  Alabama  statute  of  1842.^ 

17.  It  has  been  held,  that  one  having  an  equitable  lien 
may  redeem  ;  as,  for  instance,  a  widow,  claiming  a  settlement 
for  life  under  marriage  articles.^ 

18.  It  is,  however,  the  general  rule  of  law,  that  the  person 
having  a  legal  title  to  the  estate  is  the  party  authorized  to 
redeem.  Hence  a  cestui  que  trust  is  not  the  proper  plaintiff 
in  a  bill  for  redemption,  unless  some  special  cause  be  shown 
for  not  bringing  the  suit  in  the  name  of  the  trustee. 

19.  Upon  this  subject  Judge  Story  remarks  as  follows  :  - — 
"  The  trustees  under  the  will  were  invested  with  the  legal 
estate,  and  consequently  they  are  the  proper  parties  to  file  a 
biU  to  redeem.  It  does  not  appear  from  the  biU,  that  the 
plaintiffs  are  really  entitled  to  any  thing  under  the  will ;  for 
it  is  not  alleged  that  any  thing  would  or  did  remain  after 
satisfying  the  prior  trust.     If  it  did,  still  the  trustees,  being 

1  1  Tow.  262,  «.,  263,  a.  *  Lowrcy  v.  Tew,  3  Barb.  Ch.  407. 

^1  Pow.  1 62, /). ;  Rand  V.  Cartwright,  ^  Branch  Bank,    &c.  v.  Furncss,    12 

1  Ch.  Cas.  .59  ;  Loud  i'.  Lane,  8  Met.  Ahih.  367. 

517  ;  Bacon  ?;.  Bowdoin,  22  Pick.  401.  *'  ILiynicr  v.  ILiymcr,  2  Ventr.  343. 

«N.  II.  St.  184.0,  233. 


(^/)  Thus,  where  one  co-tenant  conveys  a  parcel  of  the  land  by  metes  and 
bounds,  takes  back  a  mortgage,  and  assigns  it,  a  lessee  for  years  from  the 
mortgagor  may  redeem  the  mortgage  from  the  assignee,  if  he  has  no  title 
under  the  other  co-tenant.     Bacon  v.  Bowdoin,  2  Met.  591. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  367 

owners  of  the  legal  estate,  are  solely  entitled  to  redeem, 
unless  they  have  refused  to  redeem,  or  have  colluded  with  the 
mortgagee,  or  some  other  impediment  is  shown  to  the  redemp- 
tion on  their  part.  The  bill  ought  to  have  contained  specific 
allegations  on  this  head,  stating  a  case,  which  would  estab- 
lish a  residuary  interest  in  the  plaintiffs,  and  a  ground  for 
their  claim  to  redeem,  instead  of  the  trustees.  The  trustees 
are  made  parties,  and  have  answered,  and  there  is  a  general 
charge  of  confederacy  against  them.  But  this  will  not  sup- 
ply the  defect  of  proper  allegations  to  establish  the  plaintiff's 
claim  to  redeem.  The  trustees  must  be  called  upon  to 
answer,  and  must  answer  specifically  to  such  matters,  as  will 
justify  the  Court  in  acting  without  or  adversely  to  them."  ' 

20.  The  lord  of  a  manor  taking  by  escheat^  on  the  death  of 
a  tenant  without  heirs,  the  fee  simple  of  lands  holden  of  the 
manor,  but  subject  to  a  demise  by  way  of  mortgage  for  a 
term  of  years  created  by  the  tenant,  is  entitled  in  equity,  as 
against  the  mortgagee,  to  redeem  the  term.^ 

21.  But  a  mere  personal  claim,  which  gives  no  actual, 
vested  title  to  the  land,  will  not  be  sufficient  ground  for  re- 
deeming a  mortgage,  although  the  party  may  be  greatly  in- 
terested in  having  it  discharged.     ( Supra,  14.) 

22.  In  White  v.  Parnther,^  Lord  Wynford  remarked,  with 
reference  to  the  claim  of  an  annuitant  to  redeem  the  mort- 
gage :  —  "If  so,  every  legatee  of  the  mortgagor  must  have 
the  same  right  of  insisting  that  the  mortgage  debt  is  satis- 
fied, and  of  calling  on  the  mortgagee  to  give  him  an  account 
of  the  proceeds  of  the  estate  from  the  time  of  the  death  of 
the  mortgagor,  a  period  of  above  fifty  years.  If  creditors  or 
legatees  of  the  mortgagor  had  the  right  of  calling  mort- 
gagees to  separate  accounts,  every  mortgagee  v^ould  be  lia- 
ble to  be  ruined,  by  the  different  suits  that  might  be  insti- 
tuted against  him.  But  from  the  principle  laid  down  in  the 
case  of  Troughton  v.  Binkes,  (6  Ves.  572,)  and  the  cases  re- 

1  rcr  Story,  J.,  Dexter  v.  Arnold,  1         -  Viscount  &c.  v.  Morris,  3  narc,394. 
Suuin.  Ill,  112.  3  1  Kaapp,  229. 


368  THE   LAW  OF   MORTGAGES.  [CH.  XV. 

ferred  to  by  the  Master  of  the  Rolls  in  his  judgment  in  that 
case,  I  think  that  the  mortgagor  or  his  heirs  only  can  sue 
the  mortgagee  for  an  account  and  redemption,  unless  it  can 
be  shown,  that  they  and  the  mortgagee  are  in  collusion,  to 
prevent  creditors  or  legatees  froni  recovering  what  is  due  to 
them  from  the  mortgagor's  property." 

23.  In  Grant  v.  Duane,'  Thompson,  J.,  says  :  —  "If  the 
respondents  have  shown  no  interest  in  themselves,  or  a  right 
to  redeem  the  mortgage  on  their  own  account,  or  on  account 
of  others,  with  whom  some  connection  is  shown,  and  whose 
interest  they  have  a  right  to  represent,  their  claim  cannot  be 
supported,  notwithstanding  some  other  person  might  have  a 
right  to  enforce  the  same  claim.  It  cannot  be  allowed  to 
them  to  speculate  on  the  claims  of  others,  and  redeem  at 
their  peril,  and  then  litigate  with  those  who  may  have  the 
right.  No  person  can  come  into  a  Court  of  Equity  for  a  re- 
demption of  a  mortgage,  but  he  who  is  entitled  to  the  legal 
estate  of  the  mortgagor,  or  claims  a  subsisting  interest  under 
him." 

24.  One  having  a  deed  from  the  mortgagor  subsequent  to 
the  original  mortgage,  assisting  in  the  entry  of  the  mortgagee, 
and  the  conveyance  by  him,  without  giving  notice  of  his 
claim,  and  who  has  neither  paid  nor  tendered  any  thing  to 
the  mortgagee  or  his  assignee,  is  not  entitled  to  redeem,  or 
have  a  release  of  the  premises,  after  foreclosure,  by  paying 
the  amount  mentioned  in  the  assignee's  personal  contract 
with  the  mortgagor.^ 

25.  While  all  parties  interested  in  the  land  are  thus  pro- 
tected in  the  right  of  redemption,  it  is  also  strictly  enforced 
against  all  who,  by  whatever  title,  succeed  to  the  rights  of 
the  mortgagee.  Thus,  in  England,  the  king-  is  not  privileged 
from  this  claim. 

26.  The  case  of  Pawlett  v.  The  Attorney- General,^  was  a 
bill  to  redeem  a  mortgage.  The  plaintiff  mortgaged  to  Lud- 
low, and  entered  into  a  statute  and  recognizance  to  perform 

1  9  Johns.  611.  2  Shaplcy  i-.  Rangclcy,  1  W.  &  M.  213.  '^  Hard.  465. 


en.  XV.]  EQUITY   OF  REDEMPTION.  369 

the  covenants  of  the  mortgage  and  pay  the  debt  at  a  certain 
day,  which  was  past.  The  mortgagee  died,  having  demised 
all  his  goods,  debts,  and  personal  estate  to  his  executor. 
The  son  and  heir  of  the  mortgagee  having  been  attainted  of 
high-treason,  the  king  seizes,  and  the  executor  extends  the 
plaintiff's  lands  upon  the  recognizance,  who  thereupon  ex- 
hibits his  bill  against  the  king  and  the  executor,  suggesting 
that  he  was  prevented  by  the  plague  from  paying  at  the 
time  and  place  appointed,  and  that  afterwards  the  mortgagee 
accepted  the  interest  and  waived  the  forfeiture.  The  ques- 
tion was,  upon  demurrer  to  the  bill,  whether  redemption 
should  be  allowed  against  the  king.  Hale,  Chief  Baron, 
said : '  — "  This  is  a  case  of  great  concern,  and  deserves 
great  consideration.  It  was  made  a  question  in  this  pres- 
ent Parliament  in  the  House  of  Lords  in  the  Earl  of  Cleve- 
land's case ;  first,  whether  or  no  there  be  a  right  of  redemp- 
tion in  this  case  against  the  king ;  and  secondly,  if  there  be, 
what  remedy  must  be  taken.  And  answered,  as  I  take  the 
law  to  be,  that  in  natural  justice  redemption  of  a  mortgage 
lies  against  the  king.  But  I  am  of  opinion  that  the  king 
cannot  be  compelled  to  reconvey ;  but  that  an  amove  as 
manum  only  lies  in  such  case.  The  matter  of  redemption,  it 
seems,  is  not  the  main  business  in  the  case  ;  for  Mr.  Attor- 
ney-General offers  to  give  way  to  a  redemption,  upon  pay- 
ment of  the  money.  But  the  point  is,  who  shall  have  the 
money,  whether  the  executor  and  devisee,  or  the  king."  The 
report  does  not  show  any  definite  decision  of  this  question. 
The  Chief  Baron  afterwards  remarks  :  —  "  The  statute  of 
33  Hen.  8,  c.  39,  is  to  be  considered,  which  gives  relief  in 
equity  against  the  king.  And  I  conceive  clearly,  that  in  this 
case,  the  executor  would  be  relieved  against  the  heir  for  the 
money ;  because  in  common  estimation  it  is  but  a  personal 
estate."  "  Baron  Atkyns  was  strongly  of  opinion,  that  the 
party  ought  in  this  case  to  be  relieved  against  the  king, 
because  the  king  is  the  fountain  and  head  of  justice  and 

1  Hard.  467. 


370  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

equity,  and  it  shall  not  be  presumed,  that  he  will  be  defec- 
tive in  either.  And  it  would  derogate  from  the  king's  honor 
to  imagine,  that  what  is  equity  against  a  common  person 
should  not  be  equity  against  him."  ^ 

27.  In  the  case  of  Viscount,  &c.  v.  Morris,^  it  was  con- 
tended, that  opinions  had  been  expressed  in  the  case  of  Bur- 
gess V.  Wheate,^  adverse  to  these  views  of  Lord  Hale.  But 
Vice- Chancellor  Wigram  says  : '^  —  "I  do  not  understand 
any  of  the  judges  in  Burgess  v.  Wheate  to  have  expressed 
an  opinion  adverse  to  what  Lord  Hale  says,  in  the  case  in 
Hardres,  as  to  the  nature  of  an  equity  of  redemption.  In 
that  part  of  Sir  Thomas  Clarke's  judgment  in  which  he  dis- 
tinguishes Sand's  case  from  Pawlett  v.  The  Attorney- Gen- 
eral, as  well  as  in  a  subsequent  part  of  the  judgment,  he 
appears  to  me  to  approve  of  Lord  Hale's  distinction,  and  to 
say  that  Lord  Nottingham  approved  of  it  also.  Lord  Mans- 
field certainly  approved  of  what  Lord  Hale  said  in  Pawlett's 
case ;  and  the  Lord  Keeper,  although  he  said  he  believed 
that  what  Lord  Hale  laid  down  and  Baron  Atkyns  approved, 
in  Pawlett's  case,  had  never  been  decided,  remarked  that  he 
hoped  the  law  was  so  settled." 

28.  In  case  of  the  mortgagor's  death,  his  heir  or  assignee 
alone  can  redeem.^  (e) 

29.  Where  redemption  is  sought  by  the  heirs  of  the  mort- 
gagor. Judge  Story  remarks  as  follows,  with  regard  to  the 

1  Hard.  469.  5  gmitli   ,;.    Manning,  9   Mass.   422; 

-  3  Ilure,  394.  Elliot  r.  Tiitton,  4  Ycrg.  10  ;  Shaw  v. 

'■^  1  Ed.  205,  206.  Iloadlcy,  8  Blackf.  165. 
*  3  Hare,  405. 


(e)  In  Georgia,  a  rule  for  foreclosure,  after  the  death  of  the  mortgagor, 
must  be  made  upon  the  executor  or  administrator,  not  the  heirs.  Magrudcr 
V.  Offutt,  Dudl.  227.  In  Arkansas,  the  Court  may  order  the  executor  to 
redeem.  Ark.  L.  139.  Upon  a  decree  of  foreclosure  against  heirs,  the 
surplus  proceeds  of  sale  go  to  them.  Shaw  v.  Iloadlcy,  8  Blackf.  1G5.  In 
a  suit  to  redeem  against  a  devisee,  an  account  of  the  rents  received  by 
the  devisor  may  be  obtained,  without  his  being  represented  on  the  record. 
Trulock  V.  Robey,  15  Sim.  277. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  371 

proper  form  of  proceeding :  —  «  In  general,  it  is  certainly 
proper  that  all  the  heirs  of  the  mortgagor  should  be  before 
the  Court,  before  a  redemption  is  decreed.  And  this  for 
two  reasons ;  first,  that  thek  rights  and  interests  may  not 
be  affected  by  any  change  of  the  title  without  their  consent ; 
and  secondly,  that  they  may  be  parties  to  the  account,  and 
the  mortgagee  or  his  heirs  and  representatives  not  be  har- 
assed by  a  new  suit  for  a  new  account."  ^ 

30.  In  Wells  v.  Morse,2  it  was  objected  to  a  bill  in  equity 
for  redemption,  brought  by  an  heir,  that  the  creditors  of  the 
mortgagor  (the  estate  being  insolvent)  were  the  proper  par- 
ties to  redeem.  The  Court  say  :  —  "  The  estate  descended, 
doubtless,  subject  to  the  lien  of  the  administrator  in  behalf 
of  creditors.  But  if  the  right  of  the  creditors  has  never  been 
asserted,  although  more  than  twenty  years  have  elapsed,  it 
cannot  now  be  asserted,  in  this  collateral  way,  to  bar  the 
hek.  Whether  that  right  will  ever  be  asserted,  and  if  so, 
whether  their  claims  are  not  barred  by  lapse  of  time,  are 
questions  proper  to  be  decided,  when  they  shall  be  duly  pre- 
sented. We  do  not  deem  it  necessary  to  determine  what 
then:  rights  may  be,  because  we  do  not  see  how  their  rights 
are  to  be  affected  by  this  proceeding.  They  can  have  no 
claim  for  any  thing  more  than  the  value  of  the  equity  of 
redemption,  and  if  a  redemption  is  allowed  in  this  case,  they 
may  pursue  their  equity  in  the  hands  of  the  heir.  This 
Court  will  keep  the  mortgage  on  foot,  if  necessary  for  the 
purposes  of  justice,  although  the  interest  of  the  mortgagee 
and  the  equity  of  redemption  unite  in  the  same  person. 
There  wiU  be  no  difficulty  in  treating  the  plaintiff  as  mort- 
gagee, and  the  creditors  as  entitled  to  the  right  of  redemp- 
tion, should  the  case  hereafter  require  it." 

31.  One  interested  cannot  redeem  a  mortgage,  without 
paying  the  whole  debt ;  and,  if  he  has  only  a  partial  interest 
in  the  property,  which  might  be  defeated  by  the  mortgage, 

1  Dexter  v.  Arnold,  1  Sumn.  112,  113.  2  n  Vcrm.  17. 


372  THE  LAW   OF  MORTGAGES.  [cil.  XV. 

he  will  stand  in  place  of  the  party,  whose  interest  in  the 
estate  he  discharges,  and  will  hold  it  till  the  others  interested 
with  him  pay  their  shares  of  the  debt,  according  to  the  pro- 
portional value  of  the  respective  portions.^  Thus,  this  rule 
applies  to  a  purchaser  of  a  portion  of  the  mortgaged  prop- 
erty .^  So,  also,  to  all  who  are  interested  in  the  equity  of 
redemption,  as  owners  of  distinct  parcels  of  the  land,  or  as 
tenants  in  common.^  (/)  So,  even  where' the  party  paying 
the  mortgage  has  taken  a  formal  discharge  of  it.* 

32.  The  mortgagor  cannot  claim  to  have  a  part  of  the 
land  estimated  for  the  purpose  of  payment,  and  thereby  en- 
title himself  to  redeem  the  rest  by  paying  the  balance  of  the 
debt.5 

32  a.  So,  the  whole  debt  must  be  paid,  though  the  whole 
or  a  part  of  it  has  been  separated  from  the  mortgage,  and  is 
owned  by  a  different  person.*^ 

32  b.  If  a  mortgaged  estate  is  severed,  and  a  part  of  it 
comes  to  an  assignee  of  the  mortgage,  the  holder  of  the  other 
part  may  redeem  by  paying  a  proportional  part  of  the  debt. 

32  c.  A  part  of  a  m.ortgaged  estate  having  been  improved 
by  the  erection  of  a  mill  and  its  appurtenances,  the  estate 
was  subsequently  conveyed  to  different  purchasers ;  the  im- 
proved part  passing  to  A.,  and  the  other  part  to  B.,  who  was 
also  the  assignee  of  the  mortgage.     Held,  the  amount  to  be 

1  1  Pow.  281,  a.  n. ;  Elwys  v.  Thomp-  402.  See  BroAvn  v.  Worcester,  &c.,  8 
son,  9  Mod.  396  ;  KoswcU  v.  Simonton,     Met.  47. 

2    Cart.  .')16;  MuUanphy   v.   Simpson,  *  Towlc  v.  licit,  14  N.  II.  61. 

4  Mis.  319.  ^  Spring  v.  Haines,  8  Shcpl.  126. 

2  Smith  V.  Kelley,  27  Maine,  237.  '^  Johnson  v.  Candage,  31  Maine,  28. 

3  Hubbard  v.  Ascutney,  &c.  20  Verm. 


(y*)  It  is  said,  that  where  one  person  pays  the  debt,  but  another  cannot 
in  equity  take  tlie  land  from  liim  without  repayment ;  tlie  debt  still  subsists, 
for  the  purpose  of  upholding  the  mortgage.  Robinson  v.  Leavitt,  7  N.  H. 
97.  On  the  other  hand  it  is  said,  one  mortgagor  cannot  redeem  and  take  a 
conveyance  of  the  land,  without  consent  of  the  other.  Porter  v.  Clements, 
3  Pike,  3G4;  MuUanphy  v.  Simpson,  4  Mis.  319. 


CH.  XV.]  EQITITY   OF   KEDEMPTION.  373 

paid  by  A.,  in  order  to  redeem  his  part,  must  be  apportioned 
according  to  the  improved  value.' 

33.  And  the  rule  in  question  will  not  necessarily  operate 
to  debar  a  party  from  redeeming  a  part  of  the  land,  because 
the  right  of  redeeming  another  part  has  been  lost.  In  Dex- 
ter V.  Arnold,^  Judge  Story  says  :  —  "It  may  be  suggested, 
that  there  cannot  be  any  redemption  of  a  mortgage,  unless 
of  all  the  premises  contained  in  the  original  mortgage  deed  • 
and  therefore  if  there  be  a  bar  to  any  part,  that  operates  as  a 
bar  to  the  whole.  Our  opinion  is,  that  this  objection  is  not 
maintainable  in  point  of  law.  There  is  neither  reason  nor 
policy  to  support  it." 

34.  In  Calkins  v.  Munsel,  et  ux.,^  a  petition  in  chancery 
set  forth,  that  Stephen  Calkins  mortgaged  two  hundred 
acres  to  the  defendants,  to  secure  a  debt ;  that  the  mortgagor 
had  conveyed  a  portion  of  the  land  to  the  petitioner,  and  the 
residue  to  others ;  and  prayed  to  redeem,  on  payment  of  the 
debt  to  the  wife,  who  had  survived  her  husband.  Decreed, 
that  upon  such  payment  she  should  release  to  the  petitioner, 
which  would  put  him  in  the  place  of  the  mortgagees,  with 
respect  to  the  mortgagor  and  his  assigns,  as  to  all  the  lands, 
except  what  the  petitioner  had  himself  purchased. 

34  a.  A.  mortgaged  Whiteacre,  by  an  absolute  deed,  with 
a  defeasance,  to  secure  the  payment  of  notes  due  on  a  cer- 
tain day,  and  Blackacre,  conditioned  for  payment  of  the 
same  notes,  and,  in  case  of  failure,  for  the  surrender  of 
Whiteacre,  without  suit  or  trouble.  The  notes  not  being 
paid,  A.  gave  notice  that  he  should  surrender  Whiteacre, 
and  did  subsequently  abandon  it.  Ten  months  after  the 
notes  fell  due,  the  mortgagee  took  possession.  On  a  bill  to 
foreclose  both  tracts  against  A.  and  the  grantee  of  Black- 
acre;  held,  the  surrender  should  have  been  made  in  a  rea- 
sonable time,  or  when  requested  by  the  mortgagee.  No  re- 
quest appearing,  and  no  damage  in  consequence  of  neglect 

1  Tillinghast  r.  Fry,  1  Rhode  Island,  '-i  i  Sumn.  118 

"^^^^  8  2  Eoot,  333.  " 

VOL.  I.  32 


374  THE   LAW   OF   MORTGAGES.  [CH.    XV. 

to  surrender  immediately  on  failure  of  payment,  the  defend- 
ants were  permitted  to  redeem  Blackacre,  on  paying  costs 
and  interest  on  the  notes,  to  be  compounded  from  the  expira- 
tion of  the  ten  months,  and  surrendering  the  defeasance. 
In  case  of  failure,  it  was  decreed  that  the  equity  of  redemp- 
tion to  both  ti'acts  should  be  foreclosed.^ 

35.  Land  subject  to  mortgage  was  mortgaged  anew  to 
three  mortgagees,  neither  having  priority  of  the  others,  and 
it  was  agreed  between  them  and  the  mortgagor,  that  if  it 
should  become  necessary  to  redeem  the  first  mortgage,  each 
of  the  three  should  pay  one  third  of  the  amount,  and  that 
they  should  be  indemnified  from  the  property.  One  of  them 
paid  one  third  of  the  first  mortgage,  and  then  advanced  the 
balance  and  took  an  assignment  of  the  mortgage.  Upon  a 
bill  in  equity  brought  by  him  against  the  other  two,  to  com- 
pel them  to  redeem,  held,  they  should  be  required  to  redeem 
or  forfeit  all  title  to  the  land,  and  that  in  this  suit  the  Court 
would  not  inquire  as  to  the  particular  mode  in  which,  under 
the  contract,  they  were  to  be  indemnified,  but  this  should  be 
subsequently  adjusted  between  themselves.^ 

36.  In  Jenness  v.  Robinson,^  some  of  the  heirs  of  an  intes- 
tate holding  a  mortgage  from  him,  in  order  to  prevent  a  sale 
of  the  land,  gave  a  bond  for  the  payment  of  the  debts,  and 
thus  discharged  the  mortgage.  The  other  heirs  bring  a 
petition  for  partition  against  them,  claiming  that  their  shares 
of  the  land  should  be  set  off  to  them,  and  the  respondents 
left  to  their  action  to  enforce  a  contribution  for  the  sum 
paid  to  extinguish  the  mortgage.  But  it  was  held,  that  the 
respondents  were  substituted  in  place  of  the  mortgagees,  and 
entitled  to  hold  as  if  they  were  mortgagees  in  possession, 
until  tlie  amount  charged  on  the  share  of  the  petitioners 
should  be  })aid  or  tendered  ;  and  the  petition  was  dismissed. 
Parker,  C.  J.  says :  *  —  "  The  principals  in  that  bond  have, 
so  far  as  this  case  is  concerned,  complied  with  the  condition 

1  Hunt  V.  Tyler,  2  Aik.  233.  3  jq  N.  II.  215. 

^  Hubbard  r.  Ascutnev,  &c.  20  Verm  *  lb.  218. 

402. 


en.    XV.]  EQUITY   OF   REDEMPTION.  375 

of  their  obligation.  They  have  paid  the  debts  of  the  intes- 
tate. Among  those  debts  was  one  secured  by  a  mortgage. 
It  is  immaterial  now  to  wiiom  that  debt  was  due.  It  has 
been  discharged,  and  the  estate  redeemed  from  the  incum- 
brance. But  this  was  an  incumbrance  which  affected  the 
interest  of  all  concerned  in  the  estate.  If  it  had  not  been 
removed,  a  foreclosure  must  have  taken  the  w-hole  land. 
When  the  respondents  discharged  the  debt,  —  as  they  acted 
without  the  request  of  the  petitioners,  no  right  of  action  ac- 
crued against  the  petitioners  for  contribution.  The  respon- 
dents had  the  right  so  to  act,  for  the  protection  of  their  ow^i 
interests  ;  but  the  petitioners  are  not  entitled  to  avail  them- 
selves of  the  redemption,  without  paying  a  share  of  the 
amount.  They  are  not  required  to  become  parties  to  the 
redemption,  but,  if  they  ask  the  benefit  of  it,  they  must  take 
it  with  the  burden." 

37.  In  England,  until  a  recent  period,  an  equity  of  re- 
demption was  not  legal  assets  in  the  hands  of  the  hen-,  but 
he  might  plead  riens  per  descent.  Since  the  statute  of  frauds, 
like  a  trust,  it  is  held  to  be  assets  in  equity ;  but  only  to  pay 
debts  of  that  description,  to  which  the  land  would  have  been 
liable,  if  it  had  been  a  legal  estate.  Where  the  mortgage  is 
made  for  years,  the  equity,  being  incident  to  the  reversion  in 
fee,  is,  like  the  latter,  legal  assets.^  But  now,  by  St.  3  &  4 
Will.  4,  c.  104,  an  equity  of  redemption  is  made  assets  in 
the  hands  of  the  heir  for  payment  of  debts. 

38.  By  the  English  law,  an  equity  of  redemption  has  been 
held  not  liable  to  be  taken  on  execution,  {g) 

'  2  Cruise  123,  124;  1  Hill,  ou  R.  P.  396. 


(g)  It  has  been  doubted,  whether  this  rule  is  changed  by  the  Statute  1  & 
2  \ict.  c.  110.  But  whether  it  is  thus  changed  or  not,  it  is  said  a  judgment 
constitutes  a  lien  upon  an  equity  of  redemption,  either  of  freehold  or  lease- 
hold property.  Coote,  79,  8^.  A  judgment  lien  upon  the  equity,  if  the 
mortgage  is  discharged,  becomes  a  lien  upon  the  fee.  ^McCormick  r.  Digby, 
8  Blackf.  99, 


376  THE   LAW   OF   MORTGAGES.  [CH.    XV. 

39.  Upon  this  subject  it  is  said  : '  "It  seems  impossible  to 
contend,  that  under  the  statute  of  frauds,  the  sheriff  can  de- 
liver an  equity  of  redemption  upon  an  execution  in  a  suit 
against  the  mortgagor."  In  the  case  of  Plunket  v.  Penson,^ 
Lord  Hardwicke  said,  he  should  be  glad  to  be  informed, 
whether  there  was  any  instance,  where  an  equity  of  redemp- 
tion had  ever  been  held  to  be  liable  to  the  execution  of  a 
bond  creditor  in  the  lifetime  of  the  mortgagor.  To  which 
the  counsel  in  the  cause  answered,  that  they  did  not  recol- 
lect any  such  instance.  In  Forth  v.  Duke,  &c.,^  the  Vice- 
Chancellor  said : —  "  A  judgment  creditor  has  at  law,  by  the 
statute  of  frauds,  execution  against  the  equitable  freehold 
estate  of  the  debtor  in  the  hands  of  his  trustee,  provided  the 
debtor  has  the  whole  beneficial  interest ;  but  if  he  has  left 
a  partial  interest  only,  (as  an  equity  of  redemption)  the 
judgment  creditor  has  no  execution  at  law,  though  he  may 
come  into  a  Court  of  Equity,  and  claim  there  the  same  sat- 
isfaction out  of  the  equitable  interest,  as  he  would  be  enti- 
tled to  at  law  if  it  were  legal." 

40.  It  may  be  considered  as  an  established  principle  of 
American  law,  that  equities  of  redemption  are  liable  to  be 
taken  upon  legal  process.  At  common  law,  as  has  been 
stated,  only  a  legal  title  could  be  thus  seized.*  And  in  some 
of  the  States,  independently  of  statutory  provisions,  this  rule 
has  been  regarded  as  still  in  force.^  (h)     But  in  most,  and 

1  1  Saml.  Us.  219.  *  Van  Ness  v.  Hyatt,  13  Pet.  298; 

-  2  Atk.  290.  Hill  v.  Smith,  2  McL.  446. 

^  4  Madd.  504.  ^  Goring  v.  Shrevc,  7  Dana,  G6,  67. 

Sec  State,  &c.  v.  Lawson,  1  Eng.  269. 


(/t)  In  South  Carolina,  a  mere  equity  of  redemption  is  held  not  liable  to 
sale  on  execution.  But  a  statute  having  declared  such  equity  to  be  a  legal 
right,  it  is  thereby  made  liable  to  be  thus  taken.  State  v.  Laval,  4  McC 
.340.  In  Illinois,  it  seems,  an  equity  of  redemption  is  not  subject  to  execu- 
tion. Hill  V.  Smith,  2  McL.  448 ;  nor  in  Mississippi.  In  New  York,  an 
equity  of  redemption  has  been  held  liable  to  ^edition,  by  the  common  law 
of  that  State.  Jackson  ?;.  Willard,  4  Johns.  41 ;  Hitchcock  i;.  Harrington, 
C,  290  ;  Collins  v.  Torry,  7,  278.     See  Mordecai  v.  Parker,  3  Dev.  425. 


en.  XV.]  EQUITY   OF   REDEMPTION.  877 

probably  all  of  them,  in  pursuance  of  the  settled  policy  of 
subjecting  all  forms  and  kinds  of  property  to  the  payment  of 
debts,  equities  of  redemption  have  been  in  this  respect 
placed,  by  express  legislation,  on  the  same  footing  with  legal 
estates. 

41.  In  Van  Ness  v.  Hyatt,'  it  was  held,  that  an  equity  of 
redemption  of  land,  in  that  part  of  the  District  of  Columbia, 
ceded  by  the  State  of  Maryland  to  the  United  States,  cannot 
be  taken  in  execution ;  the  common-law  rule,  by  which  such 
an  estate  is  not  liable  to  be  thus  taken,  having  prevailed  in 
JNIaryland  at  the  time  of  cession,  and  never  having  been 
changed  by  any  express  statute,  or  overruled  by  any  judicial 
decision. 

42.  It  is  to  be  observed,  however,  that  an  equity  of  redemp- 
tion is  liable  to  be  taken  upon  legal  process,  only  in  favor  of 
third  persons,  or  other  creditors  of  the  mortgagor  than  the 
mortgagee  himself.  On  account  of  the  close  connection,  and 
in  some  respects  the  absolute  identity,  between  the  mortgage 
and  the  debt  which  it  secures,  and  for  other  reasons,  which 
will  presently  appear,  it  has  been  often  decided,  that  the 
mortgagee  cannot  levy  an  execution,  recovered  in  a  suit  upon 
the  mortgage  debt,  on  the  equity  of  redemption. 

43.  The  case  of  Lyster  v.  DoUand,^  though  somewhat 
obscure,  has  a  bearing  upon  the  point  under  consideration. 
In  that  case,  the  mortgagee  filed  a  bill  of  foreclosure,  and, 
pending  such  bill,  and  while  he  was  in  possession  by  eject- 
ment, brought  a  suit  upon  the  bond  accompanying  the  mort- 
gage, took  the  premises  in  execution,  and  they  were  sold  by 
the  sheriff'  to  a  trustee  for  him.  No  unfairness  was  sussested. 
The  Lord  Chancellor  said,  if.  the  obligee,  having  a  pledge  in 
his  hands,  has  brought  an  action  against  the  obligor,  and  has 
taken  the  pledge  in  redemption,  he  takes  only  the  equity  of 
redemption  under  the  statute  of  frauds,  which,  but  for  that 
statute,  could  not  be  taken  in  execution.  K  he  had  got  a 
foreclosure,  and  had  afterwards  brought  an  action,  and  sold 

1  13  ret.  294.  •-  1  Yes.  Jun.  431. 

32* 


378  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

it  for  £5,  he  would  have  opened  his  foreclosure  again.  I  do 
not  think  he  could  have  sold  it  to  a  stranger.  If  that  offer 
was  made,  I  would  give  it  all  weight.  What  is  to  become 
of  the  principal  case,  and  the  case  put  in  that  way,  are  two 
different  things.  But  it  is  new  to  me,  that  this  case  obtains 
in  mortgages.  Under  the  statute,  the  sheriff  may  extend  an 
equity  ;  but  then  the  vendee  of  the  equity  is  in  the  same  case 
as  the  defendant  in  the  action,  and  must  proceed  as  cases  in 
action  must,  and  must  make  it  good  by  the  same  means  as 
the  defendant  must,  for  it  is  an  extent  of  a  thing  in  action. 
The  words  of  the  statute  are,  the  sheriff  shall  deliver  in  exe- 
cution to  the  party  any  lands,  tenements,  &c.,  held  in  trust 
for  the  defendant,  as  if  he  had  been  actually  seized  or  pos- 
sessed. The  statute  does  not  speak  of  equitable  interests, 
and  does  not  at  all  touch  this  case. 

44.  IiT  the  case  of  Atkins  i\  Sawyer,^  Wilde,  J.,  remarks  as 
follows  :  —  "  In  the  first  place  it  is  difficult  to  determine,  in 
case  the  sale  be  held  valid,  by  what  title  the  mortgagee  holds 
the  estate  after  purchasing  the  equity.  The  debt  being  paid 
by  the  sale  of  the  equity,  he  has  no  right  to  hold  against  the 
mortgagor  in  the  character  of  mortgagee  ;  for  although  the 
legal  estate  remains  in  him  notwithstanding  the  payment  of 
the  debt,  yet  after  such  payment  he  is  bound  to  restore  the 
possession  to  the  mortgagor,  or  the  latter  will  be  entitled  to 
his  bill  in  equity.  It  would  seem,  then,  that  the  mortgagee 
in  such  case  must  hold,  if  he  can  hold  at  all,  by  virtue  of  the 
sale  of  the  equity ;  but  this  equity  is  a  right  to  redeem,  and 
what  estate  remains  for  him  to  redeem  after  the  payment  of 
the  mortgage.  There  can  be  no  further  payment,  and  nothing 
is  to  be  done  by  him  to  complete  his  title ;  if,  therefore,  he 
holds  any  thing  by  virtue  of  the  sale,  he  would  seem  to  hold 
the  estate  itself,  instead  of  a  right  in  equity  to  redeem,  which 
cannot  be  pretended.  This  may  appear  to  be  a  technical 
difficulty,  but  it  shows  that  the  novel  mode  of  procedure  for 
which  the  defendant's  counsel  contends,  necessarily  leads  to 

1  1  Pick.  356,  357. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  ^  379 

great  inconsistency.  There  is  another  difficulty,  however,  of 
much  greater  importance,  and  which  appears  to  me  insuper- 
able. If  the  sale  of  the  equity  be  operative,  its  operation 
will  be  repugnant  to  the  statute  regulating  the  foreclosure  of 
mortgages ;  it  enables  the  mortgagee  at  his  will  and  pleasure 
to  reduce  the  mortgagor's  right  of  redemption  from  three 
years  to  one  ;  thus  depriving  him  of  an  important  right 
secured  to  him  by  the  express  words  of  the  statute,  which  in 
all  cases  allows  the  mortgagor  to  redeem  the  mortgage  at 
any  time  wdthin  three  years  after  entiy  for  condition  broken. 
This  is  the  necessary  effect  of  the  principle  contended  for  by 
the  defendant,  and  it  is  the  only  possible  advantage  the 
mortgagee  can  derive  from  a  sale  of  the  equity.  He  has 
before  the  sale  the  whole  legal  estate,  and  he  holds  it  as 
security  for  the  same  sum  before  and  after  the  sale,  except 
the  costs  unnecessarily  incurred  in  the  suit  on  the  personal 
security.  This  being  the  effect  of  the  sale  of  the  equity  by 
the  mortgagee,  it  cannot  be  supported,  unless  it  can  be  main- 
tained that  the  statute  of  1815  repealed  the  law  respecting 
the  right  of  redeeming  the  mortgaged  estate,  which  there  is 
no  pretence  for  saying.  The  principal  objection  to  the  doc- 
trine now  laid  down  is,  that  if  a  stranger  becomes  the  pur- 
chaser of  the  equity,  without  notice  that  it  is  sold  to  satisfy 
a  judgment  founded  on  the  debt  secured  by  the  mortgage,  he 
may  suffer  loss.  But  the  same  objection  may  be  made  in  all 
cases  of  sale  where  there  is  a  defective  title.  The  answer  in 
all  such  cases  is,  caveat  emptor.  He  may  examine  the  title, 
or  demand  a  warranty.  If  he  neglects  to  do  it,  he  cannot 
impute  his  loss  to  any  defect  in  the  sale." 

45.  In  Camp  v.  Coxe,i  the  plaintiff  brought  scire  facias 
upon  a  judgment ;  and  the  defence  was,  that,  holding  a  bond 
and  mortgage  of  the  defendant,  he  levied  an  execution,  recov- 
ered in  a  suit  on  the  bond,  upon  the  equity  of  redemption, 
and  himself  became  the  purchaser,  for  less  than  the  sum  due, 
the  sheriff  giving  notice  at  the  sale  that  he  sold  subject  to  the 

1  1  Ucv.  &  Bat.  52.     See  Dcaver  v.  Parker,  2  Ircd.  Cli.  40. 


380  THE    LAW    or   MORTGAGES.  [CH.  XV. 

mortgage.  Held,  the  sale  was  void,  although  the  statute, 
relating  to  sales  of  equities  of  redemption,  contained  no 
express  exception  of  such  a  case ;  that  this  limitation  arose 
from  the  act  itself  and  the  nature  of  the  subject ;  that  its 
object  was  not  to  foreclose  mortgages  and  make  them  more 
effectual  as  securities  to  the  mortgagee,  but  to  subject  the 
equitable  interest  of  the  mortgagor  to  his  creditors  having  no 
security  ;  that  such  a  sale  is  in  every  case  against  the  contract 
of  the  parties,  as  understood  in  a  court  of  equity,  by  which  it 
is  stipulated  that  the  mortgagor  may  redeem.  The  Court 
below  having  rendered  judgment  for  the  plaintiff  for  the 
balance  due  on  the  bond,  the  defendant  appealed,  and  the 
judgment  was  affirmed.  But  the  Court  above  remark:^  — 
The  defendant  lias  paid  nothing,  much  less  the  whole  debt. 
The  payment,  which  at  law  has  been  apparently  made,  will 
be  treated  properly,  when  he  shall  apply  for  redemption  to 
that  tribunal,  which  can  strip  the  case  of  its  formal  legal 
vestments,  and  administer  exact  justice,  according  to  real 
rights  which  can  there  be  seen." 

46.  In  Tice  v.  Annin,^  Kent,  Chancellor,  says  :  —  The  true 
and  only  remedy  for  all  this  mischief"  (the  sacrifice  of  the 
property  of  mortgagors)  "  is  to  prevent  such  sales  ;  and  I 
think  I  shall  be  inclined,  if  the  case  should  arise  hereafter,  to 
prohibit  the  mortgagee  from  proceeding  to  sell  the  equity  of 
redemption.  He  ought  in  every  case  to  be  put  to  his  elec- 
tion, to  proceed  directly  on  his  mortgage,  or  else  to  seek 
other  property,  to  obtain  satisfaction  of  his  debt.  I  see  no 
other  way  to  prevent  a  sacrifice  of  the  interest  of  the  mort- 
gagor, and  it  is  manifestly  equitable,  that  the  mortgagee  be 
compelled  to  deal  with  his  security,  so  as  not  to  work  injus- 
tice." (i) 

1  1  Dev.  &  Bat.  60.  2  2  Johns.  Cha.  130. 


(0  The  Revised  Statutes  of  New  York,  (vol.  2,  p.  3G8,  §  31,)  forbid  an 
execution  sale  of  the  equity  of  redemption,  upon  a  suit  by  the  mortgagee. 
Palmer  v.  Foote,  7  Paige,  437.    The  mortgagee  may  maintain  a  creditor's 


CII.  XV.]  EQUITY    OF   KEDEMPTION.  381 

47.  In  Goring  v.  Shreve,^  Judge  Ewing  remarked  :  "  The 
sacrifices,  mischiefs  and  embarrassments,  produced  by  such 
sales,  bring  us  to  the  conclusion,  that  they  were  unauthorized 
by  the  wisdom  of  the  common  law." 

48.  A  statute  of  Kentucky  provided,  in  general  terms,  for 
the  seizure  and  sale  on  execution  of  property  mortgaged,  as 
if  no  incumbrance  existed  ;  "  and  the  purchaser  shall  take  it 
subject  to  such  incumbrance,"  which  he  may  "  pay  off."  It 
was  held  by  the  Court,  in  the  case  of  Goring  v.  Shreve,^  that 
this  enactment  did  not  apply  to  the  claim  of  the  mortgagee 
himself,  which  is  perfectly  secured  without  this  additional 
remedy.  The  Com-t  remark :  ^  —  The  act  "  provides  that  the 
purchaser  shall  take  the  property  purchased,  subject  to  the 
incumbrance,   and   may  pay  off  and  discharge  the  same ; 

1  7  Dana,  67.  -  Ibid.  64.  ^  HjiJ.  69. 


bill  against  other  property,  after  an  execution  at  law  for  the  debt  has  been 
returned  unsatisfied,  without  first  foreclosing  the  mortgage,  unless  such 
property  has  been  transferred  to  a  third  person,  as  a  primary  fund.  lb.  In 
this  State,  it  was  formci-Iy  held,  that  if  a  mortgagee  sells  the  equity  of 
redemption  by  execution,  to  satisfy  the  mortgage  debt,  and  then  proceeds  at 
law  against  the  person  of  the  mortgagor  for  the  balance,  or  if  the  whole  debt 
is  satisfied  by  such  sale,  he  must  assign  the  bond  and  mortgage  to  the  moi-t- 
gagor,  that  he  may  be  able  to  compel  the  purchaser  of  the  equity  of  redemp- 
tion to  refund  him  the  debt  from  the  lands  mortgaged.  But  if  the  mortgagee^ 
by  assigning  the  whole  debt  and  mortgage  to  the  purchaser  of  the  equity, 
has  disabled  himself  from  assigning  them  to  the  mortgagor,  the  debt  will  be 
extinguished  in  the  hands  of  the  purchaser.  But  the  mortgagor  will  not  be 
entitled  to  receive  the  purchase-money,  for  the  purchaser  will  be  considered 
to  have  bought  the  land  for  the  price  paid,  subject  to  all  the  residue  of  the 
debt  secured  by  the  mortgage,  beyond  what  was  extinguished  by  that  pur- 
chase-money. Tice  V.  Annin,  2  Johns.  Ch.  125.  And  if  a  mortgagee, 
instead  of  a  bill  for  foreclosure,  proceed  against  other  property  of  the  debtor, 
his  proeeediug  will  be  stayed,  or  he  will  be  required  to  assign  over  the 
securities  to  the  mortgagor.  The  Court  will  restrain  a  mortgagee  from  pro- 
ceeding at  law  to  sell  the  equity,  or  require  him  to  elect,  either  to  proceed 
directly  on  his  mortgage,  or  to  seek  other  property,  (where  the  rights  of 
other  creditors  do  not  interfere,)  or  the  person  of  the  debtor  for  the  satis- 
faction of  the  debt.     lb. 


382  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

which  certainly  implies  that  the  incumbrance  is  not  extin- 
guished by  the  purchase,  but  remains  in  full  force,  and  must 
be  paid  oif  by  the  purchaser,  to  entitle  him  to  the  estate. 
But  if  he  purchase  in  satisfaction  of  the  mortgage  debt,  each 
bid  he  makes  will  reduce  the  amount  of  the  mortgage  debt, 
and  if  he  bid  the  whole  debt,  the  whole  amount  of  the  in- 
cumbrance will  be  extinguished,  and  his  responsibility  not 
increased,  or  his  purchase  rendered  more  valuable,  than  if  he 
had  bid  only  a  single  dollar  or  cent,  unless  he  be  made  sub- 
ject to  pay  the  amount  of  the  incumbrance,  notwithstanding 
its  extinguishment  by  the  purchase.  And  if  he  be  still  liable 
to  pay  it,  to  whom  shall  he  pay  it  ?  Not  to  the  mortgagee, 
for  his  debt  is  paid ;  and  not  to  the  mortgagor,  for  his  equity 
of  redemption  is  purchased.  So  that  he  is  permitted  to  buy 
the  estate,  subject  to  the  incumbrance,  when,  by  the  opera- 
tion of  the  sale,  the  incumbrance  is  extinguished,  and  he  has 
nothing  to  pay  for  it,  and  consequently  gets  the  whole  estate, 
for  the  amount  bid  for  the  equity  of  redemption  alone.  Such 
a  trap  for  the  sacrifice  of  estate  under  execution,  never  in  our 
judgment  entered  into  the  mind  of  the  legislature ;  nor  will 
we  give  to  their  enactment  such  a  mischievous  construction." 
The  same  construction  is  further  fortified  by  a  consideration 
of  the  statutory  provisions  ;  that  the  mortgagor,  in  order  to 
redeem,  must  pay,  not  only  the  purchase-money,  but  the 
amount  paid  by  the  purchaser  in  extinguishing  the  incum- 
brance ;  that  security  shall  be  given  for  the  forthcoming  of 
the  property,  to  abide  any  order  or  decree  in  equity ;  and 
that  the  Court  shall  have  the  control  of  the  property,  whether 
there  be  a  forfeiture  of  the  mortgage  or  not ;  all  contem- 
plating the  continuance,  and  not  the  extinguishment  of  the 
mortgage. 

48  a.  In  Alabama,  the  mortgagor  may  file  a  bill  to  redeem, 
after  such  sale,  though  possession  has  been  recovered  at  law.^ 
And  the  mortgagee  will  be  held  to  account  for  the  damages 
recovered  by  him,  and  for  the  value  of  the  crop  growing  at 

1  rowcll  I'.  Williiims,  14  Ala.  470. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  383 

the  time  of  ouster,  deducting  the  probable  cost  of  cultiva- 
tion.^ 

48  b.  In  Mississippi,  if  the  mortgagee,  or  those  claiming 
under  him,  cause  an  execution,  issued  upon  a  judgment 
founded  on  the  mortgage  debt,  to  be  levied  upon  the  land, 
a  purchaser  at  sheriff's  sale  cannot,  upon  that  ground,  in  a 
case  unmixed  with  fraud,  oppose  an  application  for  foreclo- 
sure ;  though  he  may  be  substituted  to  the  rights  of  the  mort- 
gagee to  the  extent  of  the  amount  of  his  bid.^ 

49.  A  similar  rule  has  been  applied,  in  Connecticut,  to  an 
attempted  levy  upon  the  mortgagor's  interest  by  a  creditor 
of  the  mortgagor,  {j) 

50.  In  Rowe  v.  Couch,^  a  creditor  of  the  mortgagee  levied 
an  execution  upon  the  mortgaged  premises,  by  appraisement, 
in  satisfaction  of  the  debt.  The  plaintiff,  being  the  mort- 
gagor, brings  an  action  against  a  third  person,  who  had 
undertaken  to  restore  certain  collateral  security  upon  pay- 
ment of  the  mortgage  debt,  alleging  that  sujcli  debt  was  paid 
by  this  levy.  The  Court  say :  ^  —  "  The  plaintiff  hath  n  ot  paid 
his  debt.  Bacon's  taking  the  farm  by  execution  may  entitle 
him  to  receive  the  money  from  the  plaintiff,  but  hath  not 
altered  the  nature  of  the  mortgaged  premises,  nor  in  any 
manner  paid  or  satisfied  the  plaintiff's  debt." 

51.  In  Pierce  v.  Potter  ^  it  was  held,  that  such  a  sale  ex- 
tinguishes the  lien  of  the  mortgage,  and  vests  a  good  title  in 
the  purchaser.  But  if  the  land  be  sold  to  the  mortgagee  for 
less  than  the  mortgage  debt,  it  is  not  such  an  extinguishment 
of  the  debt,  as  will  enable  the  mortgagor  to  compel  an  entry 

1  Powell  V.  Williams,  14  Ala.  476.  =*  1  Root,  452. 

■■^  Baldwin  U.Jenkins,  23  Miss.  (1  Cush.)  *  Ibid.  p.  453. 

20C.  5  7  Watts,  475. 


(/)  In  Michigan,  it  has  been  held,  that  the  "act  to  provide  for  the  trans- 
fer of  real  estate  in  execution,"  (S.  L.  1842,  p.  135,)  does  not  authorize  an 
appraisal  and  set-off  of  mortgaged  premises  in  satisfaction  of  the  mortgage, 
without  previous  proceedings  to  foreclose,  either  in  equity  or  by  advertise- 
ment.    Buck  V.  Sherman,  2  Doug.  (Mich.)  176. 


384  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

of  satisfaction  upon  the  mortgage,  or  bring  an  action  for  a 
refusal  to  make  it.  The  statute,  making  provision  for  such 
an  action,  gave  to  the  party  aggrieved  a  certain  penalty; 
but  the  mortgagor,  having  lost  all  interest  in  the  property 
by  the  execution  sale,  did  not  fall  under  this  description. 
The  Court  remark,  in  reference  to  the  effect  of  the  sale  :  ^  — 
"  Though  the  words  of  the  act  are,  that  the  lien  of  such 
mortgage  shall  not  be  destroyed  or  in  any  way  affected  by 
any  sale  made  by  virtue  or  authority  of  any  writ  of  venditioni 
exponas,  yet,  when  the  whole  section  is  considered  in  refer- 
ence to  this  case,  it  is  perfectly  obvious  that  it  cannot  be 
held  to  embrace  it.  Here  the  writ  of  venditioni  exponas  in- 
cludes the  same  debt  mentioned  in  the  mortgage,  so  that,  of 
necessity,  the  sale  by  virtue  of  it  could  not  but  affect  the  lien 
of  the  mortgage,  by  reducing,  at  least,  if  not  wholly  dis- 
charging the  debt,  accordingly  as  the  amount  bidden  at  the 
sale  might  happen  to  be  less  or  equal  to  the  amount  of  the 
debt.  It  cannot  be  supposed  that  the  legislature  intended  to 
exceed  their  power  by  extending  the  act  to  the  case  of  a  writ 
of  venditioni  exponas,  grounded  upon  a  judgment  in  favor 
of  the  mortgagee  against  the  mortgagor  for  the  same  debt 
secured  by  the  mortgage,  because  either  a  reduction  or  an 
entire  payment  of  the  debt  by  a  sale  under  the  writ  would 
necessarily  destroy  or  at  least  affect  by  lessening  the  amount 
of  the  lien  of  the  mortgage.  And  it  was  not  in  the  power 
of  the  legislature  to  continue  the  lien  of  the  mortgage  after 
the  payment  of  the  debt,  though  it  was  produced  by  a  sale 
under  the  writ."  {k) 

'  7  Watts,  p.  477. 


(/.:)  The  following  cases  in  the  same  State  (Pcnnsj'lvania,)  illustrate  the 
general  subject  treated  in  the  text.  By  the  statute  of  April  6,  1830,  the 
lien  of  a  mortgage  is  not  devested  by  a  sheriff's  sale  of  the  premises,  where 
it  is  prior  to  all  other  liens ;  and  as  in  such  case  a  subsequent  judgment 
creditor  can  sell  only  the  right  of  redemption,  the  mortgagee  cannot  claim 
payment  of  his  debt  from  the  proceeds  of  sale.     Bratton,  &c.,  8  Barr,  1G4. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  385 

52.  One  having  a  judgment,  recovered  in  1832,  which  was 
a  lien  upon  premises  covered  by  a  prior  mortgage  dated  in 
1829,  caused  them  to  be  levied  on  and  sold,  and  himself  be- 
came the  purchaser.  The  sale  becoming  absolute,  he  took  a 
deed  from  the  sheriff,  and  the  mortgage  was  foreclosed  under 
the  statute.  Held,  the  judgment  creditor  acquired  no  legal 
title,  which  could  be  set  up  in  defence  to  an  action  of  eject- 
ment. Browning,  J.,  says  : —  He  "must  claim  in  one  of  two 
ways,  and  not  in  both.  He  must  say,  either  that  he  was  the 
owner  of  the  equity  of  redemption  at  the  time  of  the  mort- 
gage sale,  or  that  he  was  a  judgment  creditor  having  a  lien. 
K  he  claims  the  equity  of  redemption,  the  answer  is  that  that 
interest  has  been  foreclosed ;  if  he  claims  merely  as  a  judg- 
ment creditor  having  a  lien,  he  must  then  go  into  equity  and 
redeem.     He  clearly  has  no  title  at  law."  ^  (/) 

1  Klock  V.  Cronkhite,  1  Hill,  108-110,  111. 


If  a  mortgagee  purchase  the  premises  at  a  sheriff's  sale,  ■which  does  not 
divest  the  mortgage,  and  retain  the  price ;  so  much  of  the  price  as  is  pay- 
able to  prior  liens  will  not  be  applied  to  the  mortgage,  though  six  years 
have  elapsed  since  the  sale.    Mott  v.  Clark,  9  Barr,  399. 

Laijd  charged  with  a  legacy,  and  subject  to  a  subsequent  mortgage,  was 
sold  on  execution.  The  case  was  referred  to  auditors,  to  report  the  facts, 
by  whom  depositions  were  taken,  after  notice  to  the  execution  purchaser, 
and  a  purchaser  from  him.  It  was  proved  that  the  purchaser  agreed  to 
buy  the  sheriff's  sale,  subject  to  the  mortgage,  and  the  Court  decreed  that 
the  proceeds  of  sale  be  applied  to  other  and  subsequent  liens.  Held,  the 
second  purchaser  was  bound  by  the  decree,  and  took  subject  to  the  mort- 
gage ;  and,  upon  a  scire  facias  against  him  and  the  mortgagor,  that  it  was 
not  competent  for  them  to  offer  evidence  that  noticS  was  not  given  to  such 
purchaser,  or  that  the  land  was  not  sold  subject  to  the  mortgage.  Towers  r. 
Tuscarora,  &c.,  8  Barr,  297. 

A  sheriff's  sale,  under  a  judgment  confessed  for  the  interest  on  a  bond 
secured  by  mortgage,  relates  back  to  the  date  of  the  mortgage,  and  there- 
fore discharges  it,  although  the  defendant  alienated  the  land  before  the 
judgment ;  though  the  mortgage  does  not  expressly  mention  interest,  but 
is  conditioned  for  the  amount  mentioned  in  the  bond.  Hartz  v.  Woods, 
8  Barr,  4  71. 

(/)  Where  a  mortgagee  sues  on  his  bond,  levies  on  the  equity,  and  buys 
VOL.  I.  33 


386  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

53.  In  the  case  of  Bronson  v.  Robinson,^  it  was  held,  that 
if  land  be  mortgaged  to  a  surety,  to  secure  him  against  his 
liability  for  the  mortgagor  ;  it  cannot  be  taken  in  execution 
by  the  creditor,  in  a  suit  upon  that  debt.  The  Court  re- 
mark r^ — "  Although  the  creditor  is  not  the  actual  mort- 
gagee, his  debt  is  nevertheless  "secured  by  the  mortgage. 
Though  not  nominal  mortgagee,  he  is  entitled  to  the  benefit 
of  the  mortgage,  and  may  enforce  it  in  equity,  and  cannot, 
while  he  retains  this  right,  be  regarded  as  a  general  creditor, 
or  a  stranger  to  the  mortgage ;  for  he  has  a  lien  in  equity  for 
his  security.  The  mortgage  secures  the  execution  debt, 
although  the  execution  creditor  is  not  the  mortgagee ;  and 
the  execution  debt  is  in  truth  the  mortgage  debt."  They 
proceed  to  remark,  that  the  reasons  given  in  Goring  v.  Shreve, 
showing  that  the  statute,  which  authorizes  the  levy  of  an 
execution  upon  equities  of  redemption,  is  inapplicable  to  an 
execution  upon  the  mortgage  debt ;  have  equal  force  in  the 
present  case.  "  And  although  this  construction  may  throw 
the  creditor  into  a  court  of  chancery,  because  his  debtor, 
without  consulting  him,  has  made  a  mortgage  which  secures 
his  debt,  this  is  no  more  than  the  debtor  could  have  done 
before  the  enactment  of  the  statute.  And  he  is  left  in  that 
condition,  not  as  a  consequence  of  any  thing  he  has  done, 
but  because  the  statute,  upon  fair  construction,  does  not 
apply  to  his  case  ;  and  because,  if  the  statute  could  be  con- 
strued otherwise,  and  if  it  should  be  supposed,  that  not 
having  voluntarily  taken  a  mortgage,  he  is  entitled  to  a  favor- 
able construction  of  it ;  we  say,  that  the  evils  which  must 
follow  from  an  extension  of  it  to  his  case,  greatly  outweigh 
the  partial  inconvenience  which  he  may  sustain  from  not 
being  embraced  in  the  statute."'"^ 

1  4  B.  Mon.  143.  "-  Ibid.  ^  Ibid.  144. 


it  himself,  the  equity  merges  in  the  legal  estate.    Hill  i'.  Smith,  2  McL.  446. 
So  whether  he  buys  all  or  a  part  of  the  mortgaged  estate.     lb. 


CH.    XV.]  EQUITY   OF   REDEMPTION.  387 

54.  In  Ohio,  it  is  held,  that  if  the  property  be  taken  and 
8old  on  execution  for  any  part  of  the  mortgage  debt,  the  pur- 
chaser will  hold  it  clear  of  the  incumbrance.^ 

55.  In  Maine,  if  a  judgment  creditor  extend  his  execution 
on  land  mortgaged  for  the  same  debt,  and  the  debtor  neglect 
to  redeem  within  a  year ;  the  creditor  acquires  an  absolute 
estate,  notwithstanding  the  mortgage.^ 

56.  Where  the  promisee  of  a  negotiable  note  secured  by 
mortgage  negotiates  the  former  without  assigning  the  latter  ; 
the  indorsee  may  attach  and  sell  on  execution  the  mortga- 
gor's equity  of  redemption,  in  a  suit  upon  the  note.^  The 
difference,  in  this  respect,  between  such  indorsee  and  the 

"-mortgagee  himself,  is  said  to  be,'*  that  the  latter  already 
holds  the  land  by  contract,  in  such  manner  as  to  give  the 
mortgagor  certain  legal  rights  as  to  the  time  and  manner  of 
defeating  his  estate,  and,  therefore,  he  ought  not  to  be  al- 
lowed to  resort  to  process  against  the  same  land,  which  will 
necessarily  abridge  those  rights.  But  no  such  contract,  ex- 
press or  implied,  is  made  with  t^e  indorsee,  who  is  presumed 
to  have  taken  the  note  in  the  manner  such  securities  are 
usually  transferred.  The  proceeding  is  admitted  to  be  at- 
tended with  difficulties  ;  but  these  may  be  avoided  by  the 
mortgagor,  by  giving  a  bond  or  a  note  not  negotiable  with 
the  mortgage,  either  of  which,  though  assigned,  must  be 
sued  in  the  name  of  the  original  holder,  and  the  plaintiff 
restricted  to  the  same  means  of  enforcing  payment,  as  the 
mortgagee  himself  would  have  been.  But  negotiable  notes 
have  become  so  common  a  medium  of  business,  that  their 
efficacy  ought  not  to  be  restrained.  It  may  be  objected  to 
the  foregoing  decision,  that  a  mortgagee,  holding  a  negotia- 
ble note,  and  desirous  to  attach  and  levy  upon  the  equity  of 
redemption,  would  be  enabled  to  effect  his  object,  by  making 
a  fictitious  transfer  of  the  note.  But  all  that  the  law  can  do 
in  regard  to  fraudulent  practices  is,  to  avoid  them  when  they 
are  proved  to  exist. 

1  Frceby  i'.  Tuppcr.  15  Ohio,  467.  ^  Crane  v.  March,  4  Pick.  131. 

2  Porter  v.  King,  1  Grccnl.  297.  *  Per  Parker,  C.  J.,  lb.  135,  136. 


388  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

57.  The  assignee  of  a  mortgage  debt  levied  an  execution, 
in  an  action  upon  such  debt,  on  the  property  mortgaged* 
After  an  acquiescence  of  four  years,  held,  a  purchaser  from 
the  execution  purchaser,  without  notice  of  the  mortgage, 
should  not  be  disturbed  in  his  title  by  the  mortgagee  or  his 


assignee.' 

58.  But  where  the  note  and  mortgage  have  both  been 
assigned,  the  assignee  cannot,  any  more  than  the  original 
mortgagee,  levy  his  execution  upon  the  equity  of  redemp- 
tion. 

59.  James  Goodwin  gave  to  John  Goodwin  a  note,  se- 
cured by  mortgage,  and  John,  on  the  same  day,  indorsed  the 
note,  and  assigned  the  mortgage  to  Giles.  James  after- 
wards died,  having  devised  aU  his  real  estate  to  John,  and 
appointed  him  executor  of  his  will.  John  afterwards  gave 
to  Giles  his  note  for  the  sum  due  on  the  other  note,  which 
new  note  contained  a  memorandum  that,  when  paid,  it 
should  discharge  the  note  of  James.  Giles  immediately 
brought  an  action  on  the  new  note  against  John,  recovered 
judgment,  and  levied  his  execution  upon  John's  equity  of 
redemption.  The  proceeds  of  this  sale  and  of  the  sale  of 
certain  chattels  were  indorsed  on  the  mortgage  note.  The 
plaintiff,  being  the  execution  purchaser,  brings  an  action 
against  John  to  recover  the  mortgaged  premises.  In  giving 
the  opinion  of  the  Court,  that  the  action  could  not  be  main- 
tained, Wilde,  J.,  refers  to  the  above-cited  case  of  Atkins  v. 
Sawyer,  and  remarks  as  follows  :  —  "In  this  case,  the  equity 
was  sold  to  satisfy,  in  part,  a  judgment  recovered  by  an  as- 
signee of  the  mortgage  ;  but  this  makes  no  difference,  for 
the  assignee  has  the  same  rights  which  the  mortgagee  had, 
and  no  greater,  and  by  the  sale  of  the  equity  he  could  obtain 
no  additional  security.  If  the  mortgage  debt  had  been  as- 
signed without  the  mortgage,  the  sale  would  have  been 
valid,  according  to  the  decision  in  Crane  v.  March,  4  Pick. 
131.     But  here,  the  mortgage  having  been  assigned  with  the 

1  Waller  v.  Tate,  4  B.  Mon.  533, 


CH.  XV.]  EQUITY   OF   REDEMPTION.  889 

debt,  the  case  cannot  be  distinguished  from  that  of  Atkins  v. 
Sawyer.  Nor  does  it  make  any  difference,  that  John  Good- 
win, the  son  of  the  mortgagor,  after  his  decease,  gave  his 
note  for  the  amount  due  on  the  mortgage,  and  that  the 
equity  was  sold  to  satisfy  a  judgment  recovered  on  that 
note.  This  note  was  given  merely  as  additional  security, 
and  operated  as  such  as  to  the  sale  of  the  property  which 
was  not  included  in  the  mortgage.  But  the  mortgage  was 
nol  discharged.  The  assignee  still  held  the  original  note 
against  the  mortgagor,  and  the  proceeds  of  the  sale  of  prop- 
erty on  the  execution  against  John  Goodwin,  were  indorsed 
on  the  note  against  James  Goodwin,  the  mortgagor.  On 
these  grounds,  we  are  of  opinion  that  the  sale  of  the  equity 
is  void  ;  and  the  plaintiff's  title  fails."  ^  (m) 

59  a.  Where  the  same  land  is  twice  mortgaged,  the  first 
mortgagee  may  levy  an  execution,  recovered  in  a  suit  on  the 
mortgage  note,  upon  the  right  of  redeeming  the  second  mort- 
gage ;  more  especially  if  the  second  mortgage  includes  other 
land.  The  Court  remark:  —  "The  mortgagor,  by  his  own 
act,  created  a  new  equity  of  redemption,  partly  in  the  land 
previously  mortgaged  —  and  partly  in  other  land.  No  part 
of  this  new  equity  was  the  subject  of  any  contract  between 
Fairfield  (the  first  mortgagee)  and  the  tenant.  The  contract 
between  Fairfield  and  the  tenant,  which  the  former  is  not 

1  Waslibui-n  v.  Goodwin,  17  Pick.  137,  139. 


(m)  A  mortgagee  of  personal  property  brought  an  action  for  the  debt,  and 
attached  the  mortgaged  property.  Afterwards,  the  mortgagor  having  peti- 
tioned under  the  insolvent  law,  the  mortgagee  waived  the  attachment,  and 
suffered  the  messenger  to  take  the  property.  Held,  he  had  not  thereby  lost 
his  right  to  petition  the  master  in  chancery  for  a  sale  of  it ;  more  especially 
as  it  did  not  appear  that  the  mortgagee  ordered  an  attachment  of  these  par- 
ticular goods,  and  there  were  others,  not  included  in  the  mortgage.  The 
Court  took  a  distinction  between  this  case,  of  a  mortgage,  where  the  title 
does  not  depend  on  actual  possession,  and  a  mere  lien,  like  the  right  of 
retaining  possession  for  services  done,  where  an  attachment  would  be  a 
waiver  of  the  lien.     Barnard  v.  Eaton,  2  Cush.  294,  304. 

33* 


390  THE   LAW   OF   MORTGAGES.  [cH.  XV. 

permitted  to  violate,  extends  only  to  the  right  of  the  latter  to 
redeem  the  first  mortgage."  The  rights  of  redeeming  the 
two  mortgages  are  distinct  rights.  If  a  different  rule  were 
adopted,  "  a  mortgagor,  by  giving  a  second  mortgage  of  the 
same  laijd  to  a  different  person,  and  including  in  it  other 
land  also,  might  place  a  part  of  his  property,  which  the  first 
mortgagee  might  otherwise  resort  to  —  out  of  the  reach  of 
such  mortgagee.  For,  when  a  mortgage  is  made  of  different 
tracts  —  we  know  of  no  law  by  which  the  equity  of  redeem- 
ing one  of  the  tracts  only  can  be  sold."  ^ 

60.  In  England,  an  equity  of  redemption  is  subject  to  cur- 
tesy^ if  the  wife  is  in  possession  of  the  land  during  coverture. 
For,  though  such  possession  is  a  mere  tenancy  at  will,  it  is, 
in  equity,  that  of  the  real  owner,  subject  only  to  a  pecuniary 
charge.  Nor  is  the  husband  to  be  deprived  of  curtesy  on 
the  ground  of  laches,  in  not  paying  off  the  mortgage  and 
thereby  acquiring  an  absolute  title,  by  analogy  to  the  rule 
which  requires  of  him  actual  entry  upon  a  legal  estate  of  the 
wife ;  for  payment  of  a  mortgage  is  a  far  more  difficult  mat- 
ter than  a  mere  entry  upon  land,  besides  that  the  mortgagee 
is  entitled  to  notice  before  he  is  bound  to  accept  such  pay- 
ment. Upon  these  grounds,  a  decision  of  Sir  Joseph  Jekyll, 
disallowing  curtesy  in  an  equity  of  redemption,  was  reversed 
by  Lord  Hardwicke.^ 

61.  A  different  rule,  however,  has  prevailed  in  relation  to 
dower.  In  general,  dower  is  more  peculiarly  favored  by  the 
law  than  curtesy  or  any  other  estate.  A  dowress  is  said  to 
be  in  the  care  of  the  law  and  a  favorite  of  the  law ;  ^  to  have 
an  equitable  and  a  moral  right,  favored  in  a  high  degree  by 
law,  and  next  to  life  and  liberty  held  sacred.^  Moreover, 
dower  is  a  regular  subject  of  equity  jurisdiction  ;(w)  and  it 

1  Johnson  v.   Stevens,  7    Cush.  432,         ^  1  Story's  Eqn.  583. 
434,  435.  *  Kennedy  v.  Ncdrow,  1  Dull.  417. 

-  1   Hill,  on  K.  P.  395  ;  Casbornc  v. 
Inglis,  2  Abr.  Equ.  728  ;  1  Atk.  CU3. 


(ii)  In  ]\Iassacliusctts,  Parker,  C.  J.,  remarked,  (Bolton  v.  Ballard,   13 


CH.  XV.]  EQUITY   OF  REDEMPTION.  391 

has  been  said  to  be  unconscientious  to  turn  the  widow  over 
to  law  for  the  recovery  of  a  provision  necessary  to  her  imme- 
diate subsistenceJ  Yet,  it  would  seem  upon  purely  technical 
grounds,  the  mere  circumstance  of  an  estate's  being  incum- 
bered by  mortgage  has  been  held  in  England  to  preclude  a 
widow  from  taking  any  share  therein.  Chancellor  Kent 
says  :  2  —  "In  England,  dower  is  considered  as  a  mere  legal 
right,  and  equity  follows  the  law,  and  will  not  create  the 
right  where  it  does  not  subsist  at  law." 

62.  In  Banks  v.  Sutton,^  it  was  held  by  Sir  Joseph  Jekyll, 
M.  R.,  that  the  widow  of  a  mortgagor  in  fee  should  be 
endowed  of  the  equity  of  redemption,  upon  paying  a  third 
of  the  mortgage-money,  or  keeping  down  a  third  of  the 
interest.  This  decision  was  based  upon  the  grounds,  that 
dower  is  a  moral,  a  legal,  and  an  equitable  right,  and  entitled 
to  more  favor  than  curtesy,  which  has  always  been  allowed 
in  equities  of  redemption.  Sir  Joseph  Jekyll  closes  an  elab- 
orate and  learned  opinion  by  saying  :  *  —  "I  do  not  know 
nor  can  find  any  instance,  where  a  dower  of  an  equity  of 
redemption  was  controverted,  and  adjudged  against  the  dow- 
ress  ;  and  as  there  are  authorities  in  cases  less  favorable, 
therefore  I  declare,  that  the  plaintiff  being  the  widow  of  the 
person  entitled  to  the  equity  of  redemption  of  this  mortgage 
in  question,  (which  was  a  mortgage  in  fee,)  hath  a  right  of 
redemption ;  and  accordingly  decree  her  the  arrears  of  her 
dower  from  the  death  of  her  husband,  she  allowing  the  third 
of  the  interest  of  the  mortgage-money  unsatisfied  at  that 
time,  and  her  dower  to  be  set  out,  if  the  parties  differ." 
•    63.  In  Attorney- General  v.  Scott,^  Lord  Talbot  decreed 

1  1  Story's  Equ.  579.  *  lb.  719. 

-  Titus  )•.  Neilson,  5  John.  Cha.  454.  °  For.  138. 

3  2  P.  Wms.  701. 

Mass.  230,)  "  This  right  may  be  enforced  in  England  by  the  intervention  of 
the  Court  of  Chancery." 

In  another  case,  (Snow  v.  Stevens,  13  Mass.  280,)  the  same  Judge 
remarks :  "  The  interest  of  the  widow  in  such  estate  is  protected  by  the 
Court  of  Chancery. 


392  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

against  a  claim  of  dower  in  a  trust  estate  ;  treating  a  trust 
as  exactly  the  same  interest  with  a  use  before  the  statute  of 
uses,  in  which  dower  was  never  allowed.  He  cites  as  an 
authority  the  case  of  Bottomly  v.  Lord  Fairfax,  Pasch.  1712, 
Free,  in  Chan.  336,  and  remarks,  in  reference  to  another 
decision,  cited  in  the  argument :  —  "  For  me,  therefore,  to  do 
a  thing  merely  upon  the  authority  of  an  obscure  case,  (name- 
ly, Fletcher  v.  Robinson,)  which  does  not  seem  to  have  been 
determined  upon  that  point  neither,  and  that  might  perhaps 
shake  the  settlements  of  five  hundred  families,  is  what  I  can- 
not answer  to  my  conscience." 

64.  This  decision  has  been  since  uniformly  adhered  to. 
And  no  peculiar  equities  on  the  part  of  the  wife  will  operate 
to  change  the  rule  in  her  favor ;  as,  for  instance,  the  facts, 
that  the  husband  expressed  his  expectation  and  desire  that 
she  should  have  dower,  and  was  so  instructed  by  the  person 
who  drew  his  will ;  that  the  wife  is  left  for  the  most  part 
otherwise  unprovided  for  ;  and  that  certain  articles  of  luxury, 
such  as  a  coach  and  horses  and  plate,  are  bequeathed  to  her, 
for  which  she  can  have  no  use  without  dower  to  support 
her."  (o) 

65.  In  the  United  States,  this  rule  has  been  extensively  if 
not  universally  changed,  either  by  legislative  enactment  or 
judicial  decision.  In  North  Carolina,  Virginia,  Illinois,  In- 
diana, Tennessee,  and  Ohio,  (p)  dower  is  allowed  in  all 
equitable  estates.^     Chancellor  Kent  says,'^  dower  is  allowed 

U)ixon  V.  Saville,  2   Cmisc,  117;  2  L.  209;  Ton.  St.  1823,40  ;  4  GiilT.  909; 

Pow.  093,  1  Bi-o.  325.  McMahan  v.  Kimball,  3  Blackf.  C. 

-  1  Vir.   Kcv    C.  159;  Illin.  Rev.  L.         '-^4  Kent,  44. 
627  ;  1   N.  C.  Rev.  St.  014  ;  Ind.  Rev. 


(o)  But,  by  St.  3  &  4,  Wm.  4,  c.  105,  §  2,  a  widow  may  claim  dower  in 
equity  from  any  beneficial  estate  or  inheritance  in  possession,  except  joint 
tenancy,  in  which  she  is  not  dowable  at  law.     1  Steph.  349,  350. 

(p)  In  Tennessee,  it  has  been  held  that  there  is  no  dower  in  lands  mort- 
gaged by  the  husband,  because  he  did  not  die  seized  and  possessed  of  them. 
Mclver  v.  Cherry,  8  Humph.  713. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  393 

in  equities  of  redemption  in  Massachusetts,  New  York,  Con- 
necticut, New  Jersey,  Pennsylvania,  Virginia,  Alabama, 
Indiana,  and  probably  most  or  all  of  the  other  States.  (^7)  It 
wiU  be  interesting  and  profitable  to  trace  the  course  of  adju- 
dications upon  this  subject  in  the  several  States,  indicating 
throughout,  a  strong  desire  and  purpose  to  be  governed  rather 
by  the  general  spirit  of  the  English  law,  so  peculiarly  favor- 
able to  the  right  of  dower,  than  by  its  harsh  application  of 
mere  technical  rules  to  this  particular  instance  of  the  claim. 

66.  In  New  Jersey,  in  the  case  of  Montgomery  v.  Bruere,^ 
the  Court,  (Southard,  J.,  dissenting,)  went  very  largely  into  a 
consideration  of  this  subject,  and  came  to  the  conclusion  that 
dower  should  not  be  allowed  in  an  equity  of  redemption. 
They  proceed  upon  the  ground,  that  as  between  the  mort- 
gagee and  mortgagor,  the  former  is  seized  of  the  freehold,  the 
latter  being  merely  his  tenant  at  will,  or  quasi  tenant  at  will ; 

1  1  South.  260. 


(q)  In  Michigan,  if  the  heir  or  other  representative  of  the  mortgagor 
redeem  the  land,  the  widow  may  either  pay  her  share,  and  take  one  third 
of  the  land,  or  take  so  much  less  than  a  third  as  will  be  equivalent  to  her 
share  of  the  debt.  Mich.  Rev.  St.  262,  263.  In  Arkansas,  where  mortgaged 
land  is  sold  after  the  death  of  the  husband  for  the  mortgage  debt,  the  widow 
shall  have  the  interest  of  one  third  of  any  surplus.  Ark.  Rev.  St.  337.  la 
Vermont,  the  widow  of  a  mortgagor  has  dower  upon  payment  of  her  propor- 
tion of  the  debt,  under  direction  of  the  probate  court.  If  the  heir,  &c.  pay 
the  debt,  she  has  one  third  of  the  land,  deducting  the  value  of  the  payment. 
The  administrator  is  required  to  pay  the  mortgage,  if  for  the  benefit  of  those 
interested  to  redeem,  either  from  the  personal,  or  by  sale  of  the  real  estate. 
If  there  is  sufficient  personal  property,  the  Court  may  order  dower  in  the 
whole  land.  Verm.  Rev.  St.  289.  In  Wisconsin,  (Rev.  Sts.  333,)  there  is 
no  dower,  where  the  mortgage  was  made  to  secure  the  purchase-money  of 
the  land.  In  case  of  sale  by  the  mortgagee  after  the  death  of  the  husband, 
the  widow  has  the  income  of  one  third  of  the  proceeds.  If  the  heir,  or  other 
person  claiming  under  the  husband,  pay  the  mortgage ;  one  third  of  the 
balance  of  the  value  of  the  land.  The  law  in  Arkansas  is  substantially  the 
same  as  in  Wisconsin.  It  is  further  provided,  that  the  widow  of  a  mortgagee 
shall  not  have  dower.     Ark.  L.  445,  446. 


394  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

and  that  in  a  court  of  law,  the  widow  of  the  mortgagor 
could  not  claim  dower,  either  on  account  of  an  equitable 
seizin  of  the  husband,  or  a  legal  seizin  of  the  mortgagee,  as 
his  trustee.  They  further  held,  that  the  claim  could  not  be 
allowed  even  in  a  Court  of  Equity,  the  case  of  Banks  v. 
Sutton,  the  only  one  favoring  such  allowance,  having  been 
decisively  overruled  by  subsequent  cases. 

66  a.  In  the  same  State  it  is  held,  that  the  widow  of  one 
seized  of  an  equity  of  redemption  is  not  entitled  to  dower 
against  the  mortgagee  or  his  assignee,  though  the  mortgagee 
has  purchased  the  equity  of  redemption;  but  he  will  be  con- 
sidered to  hold  under  the  mortgage.^ 

66  b.  The  owner  of  an  equity  of  redemption  having  died, 
leaving  a  widow,  the  land  was  sold  at  auction,  for  the  ex- 
pressed purpose  of  paying  the  mortgage  ;  a  clear  title  to  be 
given  the  purchaser.  The  assignee  of  the  mortgage  became 
the  purchaser,  deducted  the  amount  of  the  mortgage  debt 
frqjn  his  bid,  paid  the  balance,  released  the  mortgage  bond, 
but  retained  the  mortgage  for  the  purpose  of  defending 
against  any  claim  for  dower.  Held,  he  had  a  right  so  to  do, 
and  the  widow  was  not  entitled  to  dower  a^inst  him.^ 

66  c.  Devise  of  mortgaged  lands  to  two  sons  of  the  testator. 
One  of  them  released  to  the  other,  who  died,  having  empow- 
ered his  executors  to  sell  other  parts  of  his  estate.  An  act 
was  passed,  authorizing  them  to  sell  the  mortgaged  property, 
free  from  incumbrance,  and  they  sold  to  an  assignee  of  the 
mortgage,  who  also  held  another  mortgage,  which  he  cancelled 
and  surrendered,  retaining  the  first  mortgage  as  a  monument 
of  title,  and  paying  them  the  balance  of  the  price.  The  widow 
of  the  son  brings  an  action  for  her  dower.  Held,  her  only 
remedy  was  a  bill  in  equity  to  redeem,  the  mortgage  being  a 
paramount  title,  and  not  affected  by  the  act  in  question.^ 

67.  In  Stellc  v.  Carroll,"*  it  was  held,  that  the  English  rule, 
against  allowing  dower  in  equities  of  redemption,  was  in 


1  Thompson  v.  Boytl,  1  N.  J.  53.  "  Thompson  v.  Boyd,  2  N.  J.  543. 

'■ilbid.  *  12  Pet.  201. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  395 

force  in  the  State  of  Maryland,  when  the  United  States 
assumed  jurisdiction  over  the  District  of  Columbia,  though 
since  changed  by  statute.  Hence,  where  mortgages  were 
made  during  coverture,  but  the  mortgages  acknowledged  by 
the  wife,  according  to  the  statutory  requirement,  upon  privy 
examination  ;  it  was  held,  that  the  legal  estate  passed  to  the 
mortgagee,  the  husband  retaining  only  an  equity  of  redemp- 
tion ;  and,  as  the  wife  had  no  right  of  dower  in  this  equity, 
a  subsequent  deed,  executed  by  the  husband  alone,  passed 
his  whole  title,  and  barred  the  claim  of  dower. 

68.  In  Mayburry  r.  Brien,^  McLean,  J.,  says:  —  "  By  the 
common  law  dower  does  not  attach  to  an  equity  of  redemp- 
tion. The  fee  is  vested  in  the  mortgagee,  and  the  wife  is 
not  dowable  of  an  equitable  seizin.  This  rule  has  been 
changed  in  Maryland  by  the  tenth  section  of  the  act  of  1818, 
ch.  193,  which  gives  dower  in  an  equitable  title  under  cer- 
tain restrictions  ;  and  in  many  of  the  States  a  different  rule 
obtains  by  statutory  provision,  or  by  a  judicial  modification 
of  the  common  law.  As  the  right  of  the  complainant  depends 
on  conveyances  prior  to  1818,  the  above  statute  can  have  no 
effect  upon  it." 

68  a.  Conveyance  to  A.,  in  ti-ust  for  B.  during  the  life  of 
B.,  and  after  his  death  in  trust  for  A.,  his  heirs  and  assigns. 
Before  the  death  of  B.,  A.  mortgaged  to  C.  Held,  the  widow 
of  A.,  married  to  him  after  the  mortgage  and  before  the  death 
of  B.,  was  not  entitled  to  dower  in  the  land  at  common  law, 
nor  under  the  act  of  1818,  ch.  193,  to  the  prejudice  of  the 
mortgagee  or  of  the  purchaser  of  the  equity .^ 

68  b.  It  has  been  recently  decided  in  Maryland,  that  the 
widow  of  a  mortgagor  who  joined  in  the  mortgage,  may 
claim  dower  subject  to  the  mortgage,  and  redeem  ;  and  that 
she  may  require  the  personal  representatives  to  apply  the 
personal  assets  in  discharge  of  the  incumbrance.^ 

68  c.  But  if  she  has  in  the  mortgage  legally  relinquished 


M5Pct.  38.  3  Mantz    v.  Buchanan,    1  Md.  Ch. 

2  Miller  V.  Stump,  3  Gill.  304.  202. 


396  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

her  dower,  a  sale  of  the  lands  to  satisfy  the  mortgage  debt 
will  extinguish  her  claim  to  doA^er,  whatever  right  she  may 
have  to  a  share  of  the  proceeds  of  sale.^ 

68  d.  After  a  legal  assignment  of  dower,  the  land  was  sold 
under  a  decree  to  satisfy  the  mortgage  debt.  Held,  the 
widow  should  still  be  endowed  from  the  husband's  remaining 
estate.^ 

69.  Numerous  decisions  upon  the  subject  have  occurred  in 
New  York.  In  Hitchcock  v.  Harrington,^  the  mortgagor  died 
in  possession  after  the  debt  became  due  and  before  foreclo- 
sure ;  and  he  was  held  to  have  died  seized,  in  respect  to  the 
dower  of  his  wife,  and  she  was  held  entitled  to  dower,  as 
against  a  purchaser  from  the  heir,  who  had  paid  off  and  satis- 
fied the  mortgage. 

70.  In  Collins  v.  Torry,*  it  was  held,  that  the  widow  of  a 
person  purchasing  from  the  mortgagor,  subsequent  to  the 
mortgage,  might  recover  her  dower  against  a  purchaser  under 
the  husband,  who  could  not  set  up  the  mortgage,  even  as  a 
subsisting  title,  there  having  been  no  entry  or  foreclosure 
under  it. 

71.  In  Tabele  v.  Tabele,'5  the  widow  of  a  mortgagor,  being 
made  a  party  to  a  bill  of  foreclosure,  and  having  answered 
and  submitted  to  the  decree  of  the  Court,  was  held  entitled 
to  the  use  of  one  third  of  the  surplus  proceeds  of  the  sale, 
after  paying  the  debt,  as  her  equitable  dower,  and  to  her 
costs,  to  be  paid  from  the  other  two  thirds. 

72.  In  Titus  v.  Neilson,^  the  wife  of  a  mortgagor  joined  in 
a  mortgage,  and  the  latter  afterwards  made  another  mortgage, 
in  which  she  did  not  join.  The  mortgagee  filed  a  biU  for 
sale  of  the  premises,  and  after  a  decree,  but  before  sale,  the 
mortgagor  died.  Held,  his  widow  should  be  endowed  from 
the  surplus  proceeds,  after  paying  the  first  mortgage. 

73.  In  Coles  v.  Coles,"  it  was  held,  that  where  an  owner  in 

1  Mantz  V.  Buchanan,  1  Md.Cli.  202.  •*  7  Johns.  278. 

-  Ibid.  6  1  Johns.  Cha.  4.5. 

'^  0  Johns.  290.     Sec  Lewis  v.  Smith,  ^  5  Johns.  Cha.  4J2. 

11  Uaib.  152.  ''  15  Joiins.  319. 


CH.  XV.]  EQUITY  OF  EEDEMPTION.  397 

fee  mortgages  the  land  and  afterwards  marries,  his  widow 
shall  have  dower  from  the  equity  of  redemption,  against  a 
purchaser  of  that  equity,  though  the  mortgage  be  still  sub- 
sisting. Upon  this  case  Chancellor  Kent  remarks  t^  —  "  Here 
was  a  final  and  full  establishment  in  our  courts  of  law  of  the 
principle  not  admitted  in  the  English  courts  of  law,  that  a 
wife  could  be  endowed  of  an  equity  of  redemption  arising 
upon  a  mortgage  in  fee,  and  this  Court  ought  to  follow  the 
rule  of  law." 

74.  Where  a  wife  pledges  her  own  property  for  the  debt 
of  the  husband,  she  may  claim  the  legal  rights  and  privileges 
of  a  surety.  But  if  she  join  in  a  mortgage  of  his  property, 
she  cannot  claim,  after  hjf  death,  to  have  it  satisfied  wholly 
from  his  interest,  thus  giving  her  dower  in  an  unincumbered 
estate,  instead  of  an  equity  of  redemption.  Thus,  if  the 
property  is  sold  under  the  mortgage,  she  shall  be  endowed 
only  from  the  surplus  remaining  after  payment  of  the  debt 
and  costs  of  foreclosure.  Chancellor  Walworth  says :  — 
"  Sti'ictly  speaking,  the  wife  has  no  estate  or  interest  in  the 
lands  of  her  husband,  during  his  life,  which  is  capable  of 
being  mortgaged  or  pledged  for  the  payment  of  his  debt. 
Her  joining  in  the  mortgage,  therefore,  merely  operates  by 
way  of  release  or  extinguishment  of  her  future  claim  to  dower 
as  against  the  mortgagee,  if  she  survives  her  husband,  but 
without  impairing  her  contingent  right  of  dower  in  the  equity 
of  redemption."  ^ 

75.  In  the  case  of  Van  Duyne  v.  Thayre,^  Nelson,  J., 
Says  :  —  "  The  widow  of  a  mortgagor  is  entitled  to  dower  in 
the  equity  of  redemption,  upon  the  ground  that,  until  fore- 
closure or  entry,  he  holds  the  legal  title  ;  but  her  estate  is 
subject  to  the  incumbrance,  and  may  be  defeated  by  a  legal 
enforcement  of  it.*     She  may  pay  off  the  mortgage  and  there- 


1  Titus  V.  Ncilson,  5  John.  Cha.  457  ;  3  14  Wend.  2.35. 
ace.  Denton  v.  Nanny,  8  Barb.  618.  *  7  John.  283. 

2  Hawley  v.  Bradford,  9  Paige,  200, 
201. 

VOL.    I.  34 


398  THE   LAW   OF   MORTGAaES.  [CH.   XV. 

by  protect  herself.  The  subsequent  intermarriage  of  the 
mortgagor  is  not  to  be  permitted  to  affect  the  security,  or  any 
of  the  remedies  under  it.  If  the  mortgagee  after  forfeiture 
entered  into  possession,  either  by  the  consent  of  the  mort- 
gagor, or  by  means  of  legal  proceedings,  he  may  defend  him- 
self there,  at  least  till  his  debt  is  paid  ;  and  the  widow  has  no 
rights  in  this  respect,  beyond  what  would  belong  to  her 
husband,  the  mortgagor,  if  living."  After  the  mortgagee's 
death,  the  heirs  may  "  set  up  their  possession,  as  representing 
the  legal  estate  in  the  mortgaged  property  after  forfeiture,  in 
bar  of  the  widow's  claim  to  dower,  just  as  they  might  have 
done  if  an  ejectment  had  been  brought  against  them  by  the 
mortgagor,  the  husband.  The  w^iow  may  pay  off  the  mort- 
gage, and  her  right  then  is  perfect ;  and  then  a  release  of  the 
equity  of  redemption,  even  if  valid  against  the  mortgagor  and 
his  heirs,  would  be  inoperative  as  to  her." 

76.  In  Cooper  v.  Whitney,^  it  was  held,  that  dower  is 
recoverable  in  an  equity  of  redemption,  but  the  widow  has 
no  remedy  at  law. 

76  a.  A.  executed  a  mortgage,  in  which  his  wife  did  not 
join.  He  afterwards  conveyed  to  B.,  subject  to  the  mort- 
gage, his  wife  joining,  and  B.  subsequently  reconveyed  to  A. 
Held,  the  wife's  inchoate  right  of  dower  was  extinguished  by 
the  deed  to  B.,  and  was  not  restored  by  the  reconveyance  as 
against  the  mortgage,  and  she  was  dowable  only  of  the  equity 
of  redemption. 2 

76  b.  In  the  same  State  it  has  been  held,  that  where  a  hus- 
band dies  after  a  decree  of  foreclosure  sale,  and  after  the  sale ; 
there  is  no  dower  in  the  surplus  proceeds.'^ 

76  c.  But  where  a  wife  joins  in  a  mortgage,  with  the  usual 
power  of  sale,  and,  in  the  event  of  a  sale,  the  surplus  is  ex- 
pressly reserved  to  be  paid  to  the  mortgagors,  she  has  a  right 
to  have  the  residue,  not  required  to  satisfy  the  mortgage, 
whether  it  exists  in  lands  unsold  or  in  the  proceeds  of  land 


1 .3  Hill,  95.  -  Ilooglaud  v.  Watt,  2  Sandf.  Cli.  E. 

»  Frost  V.  Peacock,  4  Edw.  CIi.  078.  148. 


CH.  XV.]  EQUITY   OF  KEDEMPTION.  399 

sold  under  the  decree  of  foreclosure,  so  appropriated  as  to 
secure  her  dower,  in  case  she  survives  her  husband.^ 

76  d.  A  purchaser  under  a  decree  of  foreclosure  and  sale 
in  equity,  in  the  lifetime  of  the  husband,  when  the  wife  is 
not  made  a  party,  takes  the  estate  subject  to  her  equity  of 
redemption.  In  order  to  bar  her,  she  must  be  a  party  to  the 
suit.2 

76  e.  And,  where  there  are  surplus  moneys  in  court,  arising 
from  the  sale,  she  is  entitled  as  against  judgment  creditors, 
to  have  one  third  invested  for  her  benefit,  and  kept  invested 
during  the  joint  lives  of  herself  and  her  husband,  and  during 
her  own  life  in  case  of  her  surviving  her  husband,  as  and  for 
her  dower  in  such  surplus  moneys.^ 

77.  In  Massachusetts,  a  series  of  cases  may  be  found  upon 
the  same  subject. 

78.  In  the  case  of  Popkin  v.  Bumstead,*  (r)  the  wife  of  a 
mortgagor  joined  in  the  mortgage,  and,  after  his  death,  a  pur- 
chaser of  his  estate  from  his  administrator  paid  the  debt,  and 
the  mortgage  was  discharged  upon  the  record.  It  was  held, 
that  the  purchaser  thus  acquired  the  legal  interest  in  the 
estate,  which  gave  him  the  whole  title,  and  that  the  mort- 
gagor's widow  was  not  thereby  let  in  to  her  dower.    In  giving 

1  Denton  r.  Nanny,  8  Barb.  618.  ^  n^jj^  ^Voxik.  *  8  Mass.  491. 


(r)  See  Infra,  §  81,  for  some  remarks  upon  this  case.  In  Eaton  v.  Simonds, 
(14  Pick.  107,)  Wilde,  J.,  remarks  further,  with  regard  to  it :  —  "  The  defendant 
had  purchased  of  the  administrator  of  the  mortgagor,  and  thereby  acquired 
the  same  rights  which  the  administrator  would  have  had  if  he  had  paid  oflf 
the  mortgage  for  the  benefit  of  the  heirs.  The  mortgage  was  paid  off  after 
the  death  of  the  mortgagor,  when  the  widow's  right  of  dower  had  become 
perfect,  and  it  might  therefore  be  supposed,  that  she  was  not  entitled  to 
dower  without  contributing  her  share  of  the  redemption  money. 

Unless  the  case  can  be  supported  on  some  such  distinction,  it  is  difficult  to . 
perceive  any  legal  or  equitable  ground  on  which  it  can  stand.    It  is  difficult 
also  to  say  how  that  case  could  be  decided  on  rules  of  equity,  it  being  an 
action  at  law  ;  but  unless  the  principle  of  contribution  does  apply,  the  case 
seems  opposed  to  the  whole  current  of  the  authorities." 


400  THE  LAW   OF  MORTGAGES.  [CH.  XV. 

their  opinion,  the  Court  remarked  i^  —  "It  would  be  singular 
if,  when  the  tenant  had  paid  the  money  due  on  the  mortgage, 
and  supposed  he  had  thus  perfected  his  estate,  by  extinguish- 
ing the  only  incjimbrance  he  knew  to  exist  upon  it,  he  should 
by  that  act  revive  the  claim  of  the  demandant,  which  she  had 
before  solemnly  renounced  under  her  hand  and  seal,  and 
which,  as  he  was  under  no  obligation,  it  cannot  be  presumed 
he  meant  to  do.  But  the  facts  produce  no  such  absurdity. 
When  the  tenant  purchased  the  equity  of  redemption,  it  be- 
longed to  him  to  pay  the  money  due  on  the  mortgage,  and 
thus  rid  his  estate  of  that  incumbrance.  Having  all  the 
equitable  interest  in  himself,  when  he  had  paid  the  money 
due  by  the  mortgage,  the  legal  estate  followed  the  equitable 
interest,  and  he  became  seized  of  the  whole  fee-simple.  If 
this  were  not  the  plain  legal  operation  of  the  transaction,  the 
law  would  construe  the  discharge  of  the  mortgage  by  the 
mortgagee  a  release  of  the  legal  estate  by  him  to  the  tenant, 
who  had  become  lawfully  possessed  of  the  equitable  interest, 
and  from  whom  the  consideration  for  that  discharge  flowed, 
rather  than  such  a  mischief  should  foUow." 

79.  In  the  case  of  Bird  v.  Gardner,^  Moies  conveyed  the 
premises  in  question  to  Bird,  having  previously  made  a  mort- 
gage to  Hawes,  which  Hawes  had  assigned  to  Gardner,  the 
tenant.  Bird  then  mortgaged  anew  to  Gardner,  and  after- 
wards released  to  him  all  his  right  and  title  in  and  to  the 
premises,  and  Gardner  entered  and  remained  still  in  posses- 
sion. The  widow  of  Bird  brings  a  writ  of  dower  against 
the  tenant.  Held,  the  action  could  not  be  maintained. 
Sewall,  J.,  remarks  :  —  "  The  first  mortgage  remains  unpaid ; 
and  the  tenant  has  therefore  the  legal  title,  as  it  was  con- 
veyed by  Moies,  before  Bird  had  any  interest  in  the  prem- 
ises. It  is  upon  the  strength  of  that  title,  by  Hawes's 
assignment  vested  in  the  tenant,  that  he  is  enabled  to  resist 
the  demand  of  dower.  The  title  of  Bird  was  a  seizin  dur- 
ing the  coverture,  whereof  the  widow  was  entitled  to  dower 

1  8  Mass.  493.  "  10  Mass.  364. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  401 

against  all  other  persons  than  Moies's  mortgagee  and  his 
a'Ssigns.  But  against  them,  until  the  redemption  of  the 
mortgage,  the  demandant's  husband  had  nothing  but  an 
equity  of  redemption,  no  seizin  of  any  estate,  of  which  his 
wife  was  dowable.  It  is  well  settled  that  a  wife  is  not  dow- 
able  of  an  equity  of  redemption.  The  demandant's  right  of 
dower  might  be  maintained  against  the  second  mortgage, 
that  wliich  her  husband  in  his  lifetime  made  to  the  tenant,  if 
his  title  under  the  first  mortgage  were  removed  ;  and  it  may 
be  that  in  a  court  of  chancery,  having  a  general  jurisdiction 
in  matters  of  equity,  the  demandant  might  have  relief,  and 
her  demand  of  dower  might  be  enforced  by  some  specific 
remedy,  to  compel  the  representative  of  the  mortgagor  to 
redeem.  But  whether  this  can  be  done  in  this  court,  with 
the  very  limited  jm-isdiction  indulged  to  it,  which  has  any 
resemblance  to  the  powers  of  a  court  of  chancery,  is  at  least 
questionable.  K  there  is  any  remedy  in  this  jurisdiction,  it 
must  be  in  the  form  of  a  bill  in  equity ;  which  it  may  be  the 
demandant  and  the  representatives  of  Benjamin  Bird  are 
competent  to  maintain  for  the  redemption  of  the  first  mort- 
gage. The  representatives  of  Bird  are  competent  to  redeem 
the  two  mortgages,  and  the  claim  of  dower  by  the  widow 
might  be  adjusted  by  some  equitable  arrangement,  that 
would  do  justice  between  her  and  the  creditors  or  heirs  at 
law  of  the  husband.  But  she  has  at  prese,nt  no  remedy  at 
law  against  the  demandant." 

80.  In  the  case  of  Bolton  v.  Ballard,^  Parker,  C.  J.  says: — 
"But  for  the  circumstances,"  &c.,  "this  state  of  facts  would 
present  the  general  question,  whether  a  widow  can  have 
dower  of  an  equity  only ;  a  question  which  has  not  received 
a  direct  judicial  decision  with  us.  There  are  strong  reasons 
in  favor  of  dower  under  such  circumstances  ;  and  by  the 
common  law,  which  in  this  regard  is  founded  in  public 
policy,  as  well  as  upon  a  due  regard  to  the  situation  of 
widows,  dower  is  a  favored  estate."     After  stating  the  gen- 

1  13  Mass.  229,  230. 

34* 


402  THE  LAW   OF  MORTGAGES.  [CH.  XV. 

eral  rule,  that  as  to  all  but  the  mortgagee  the  mortgagor,  until 
foreclosure  or  possession  taken,  remains  owner  of  the  estat'e, 
he  proceeds  thus  :  —  "  There  seems  to  be  no  reason  then  why 
the  wife  should  not  be  endowed,  so  long  as  her  claim  will 
not  interfere  with  the  rights  of  the  mortgagee.  For  the  hus- 
band was  seized  in  fact,  after  the  execution  of  the  mortgage, 
against  all  but  him  to  whom  he  had  thus  conveyed ;  and  if 
it  should  be  for  the  interest  of  the  wife,  as  in  some  cases  it 
may  be,  to  redeem  the  estate,  there  can  be  no  good  reason  why 
she  should  not  enjoy  an  estate  which,  but  for  an  incumbrance 
which  she  has  removed,  would  always  have  been  subject  to 
her  claim.  *  This  right  may  be  enforced  in  England  by  the 
intervention  of  the  court  of  chancery.  And  there  seems  to 
be  no  reason  why  the  wife  here  should  not  be  placed  in  a 
situation,  which  may  enable  her  to  redeem  or  to  hold  the 
estate,  if  it  should  otherwise  Jpe  redeemed  ;  as  it  may  be  by 
the  mortgagee's  pursuing  his  remedy  for  his  debt  against 
the  personal  estate  of  the  husband  after  his  decease.  It  is 
enough  that  the  law  will  not  permit  the  wife  to  affect  the 
contract  of  the  husband,  made  with  the  mortgagee  before  the 
marriage.  No  other  person  has  any  lawful  interest  in  ex- 
cluding her  from  the  customary  right  of  the  wife  in  the  estate 
of  her  husband." 

81.  In  the  above  case  the  facts  were,  that  E.  Bolton  mort- 
gaged the  premises  to  Howard  to  secure  a  bond  of  the  same 
date,  and  afterwards  died,  leaving  G.  Bolton  his  heir,  who 
conveyed  to  S.  Bolton,  December  19,  1796.  On  the  same 
day,  S.  Bolton  conveyed  to  the  tenant,  he  agreeing  to  pay 
Howard  the  balance  due  on  the  bond,  portions  of  it  having 
been  paid,  and  the  rest  of  the  consideration  to  S.  Bolton, 
both  which  were  done,  and  the  bond  discharged.  The  tenant 
immediately  entered,  and  remained  in  possession  to  the  date 
of  the  writ.  On  the  20th  of  December,  1802,  Howard,  by 
deed  dated  December  19,  1796,  and  indorsed  on  the  mort- 
gage, released  to  the  tenant  all  his  right  in  the  land,  for  a 
consideration  named.     The  plaintiff,  being  the  widow  of  S. 


CH.  XV.]  EQUITY   OF  REDEMPTION.  403 

Bolton,  brings  an  action  against  the  tenant  for  her  dower. 
Upon  these  facts,  the  Court,  after  making  the  general  re- 
marks above  quoted,  proceed  to  decide,  that  whether  a  wife 
is  dowable  of  an  equity  or  not,  the  demandant  must  prevail 
in  this  case,  because  the  bargain  between  S.  Bolton  and  the 
tenant,  that  the  latter  should  pay  off  the  mortgage,  the  appro- 
priation of  enough  of  the  consideration  for  that  purpose,  and 
the  payment  of  the  money  and  discharge  of  the  bond  on  the 
same  day  with  the  deed  to  the  tenant,  we^e  equivalent  in 
effect  to  a  payment  of  the  mortgage  by  S.  Bolton  the  day 
before  he  conveyed  to  the  tenant,  in  which  case  he  would 
have  been  restored  to  an  indefeasible  estate  in  fee,  and  his 
seizin  would  have  been  perfect.  "  It  is  not  stated,  whether 
the  payment  or  the  delivery  of  the  deed  had  precedence  in 
point  of  time.  But,  to  execute  the  real  intention  of  the  par- 
ties, it  must  be  supposed  that  the  incumbrance  was  first 
removed.  Then  S.  Bolton  was  seized,  so  as  to  vest  a  right 
of  dower  in  his  wife ;  and,  although  this  may  be  considered 
in  one  view  as  a  seizin  for  an  instant ;  yet  it  is  to  be  taken 
in  connection  with  the  former  seizin,  which,  although  affected 
by  the  rights  of  the  mortgagee,  was  always  in  force  against 
every  other  person.  And  when  those  rights  ceased  to  exist, 
the  estate  was  as  if  it  had  never  been  incumbered."  The 
Court  then  proceed  to  notice  the  distinctions  between  this 
and  other  previous  cases  on  the  same  subject. 

In  Popkin  v.  Bumstead,  the  widow  had  released  her  dower, 
and  the  husband  had  done  nothing  towards  redeeming.  In 
Holbrook  v.  Finney,  (4  Mass.  566,)  the  husband  was  never 
seized,  having  taken  a  deed  and  given  back  a  mortgage 
simultaneously. 

82.  In  another  case  decided  by  the  same  Court,i  a  wife 
joined  her  husband  in  a  mortgage  and  released  her  dower. 
After  his  death,  she  represented  the  fact  to  the  probate  court, 
and  in  consideration  thereof  prayed  for  a  meet  sum  from 
the    personal    estate ;   and  an    allowance  was  made  her  of 

1  Hildrcth  v.  Jones,  13  Mass.  525. 


404  THE   LAW   OP  MORTGAGES.  [CH.  XV. 

one  thousand  dollars.  Subsequently  the  administrator  dis- 
charged the  mortgage.  Held,  the  widow  was  entitled  to  her 
dower. 

82  a.  Mortgage,  with  release  of  dower  upon  a  sale  of  the 
equity  of  redemption  on  execution,  the  defendant  purchased 
it,  and,  having  paid  the  mortgage  debt,  he  claimed  an  assign- 
ment of  the  mortgage.  The  mortgagee  said,  an  assignment 
would  be  unnecessary,  but  discharged  the  mortgage  on  the 
records.  Held,  the  mortgage  was  extinguished,  and  the 
widow  entitled  to  dower,  and  to  maintain  a  bill  in  equity  for 
redemption.' 

82  b.  The  execution  purchaser,  under  the  same  circum- 
stances, having  taken  immediate  possession,  obtained  an 
assignment  of  the  mortgage,  and  remained  in  possession 
more  than  three  years  after  the  assignment;  the  husband 
died,  but  no  notice  was  given  to  the  wife,  that  the  purchaser 
was  in  possession  for  condition  broken.  Held,  the  wife 
might  redeem,  in  order  to  obtain  dower.^ 

82  c.  Held,  also,  that  the  defendant  was  not  chargeable 
with  the  rents  and  profits  received  during  the  husband's  life, 
but  must  account  for  those  received  since  his  death.  So 
also  with  the  allowance  for  repairs.  Living  the  husband, 
•  he  occupied  under  his  title  as  purchaser,  afterwards,  as-mort- 
gagee.^ 

82  d.  The  widow  of  a  grantee  of  an  equity  of  redemption, 
conveyed  to  him  during  the  coverture,  and  by  him  conveyed 
to  the  mortgagee,  without  her  release  of  dower  therein,  is 
entitled  to  dower  in  such  equity,  as  against  the  mortgagee 
and  his  assignee  of  the  mortgage  and  the  equity.  And  pos- 
session taken  by  the  mortgagee,  after  the  conveyance  of  the 
equity  to  him,  for  the  purpose  of  foreclosing,  and  the  contin- 
uance of  that  possession  by  his  assignee,  for  the  same  pur- 
pose, will  not  bar  such  widow's  dower,  though  she  knows 
that  possession  is  taken  and  continued,  unless  notice  is  given 
to  her,  after  her  husband's  death,  and  three  years  before  she 

1  Eaton  V.  Simonds,  14  Pick.  98.  "  Ibid.  ^  Ibid. 


CH.  XV.]  EQUITY  OF  REDEMPTION.  405 

claims  her  dower,  that  possession  was  taken  and  held  for  the 
purpose  of  foreclosure.' 

83.  Bill  in  equity  to  redeem  two  mortgages,  made  by  one 
deceased,  in  both  which  mortgages,  one  of  the  defendants, 
the  wife  of  the  mortgagor,  released  her  dower.  After  the 
mortgagor's  death,  the  mortgages  were  assigned  to  the  other 
defendant.  The  plaintiff  was  lawful  owner  of  the  equities 
of  redemption,  and  admitted  to  have  the  right  of  redeeming, 
upon  payment  of  the  mortgage  debts.  He  also  claimed 
under  an  assignment  of  the  mortgages,  made  to  the  heir  of 
the  mortgagor.  Dower  had  been  set  off  to  the  wddow,  as  if 
no  mortgage  had  been  made,  and  the  defendants  denied  the 
plaintiff's  right  to  an  assignment  of  the  mortgages,  upon  the 
ground  that  such  assignment  of  dower  was  made  at  a  time 
when,  from  the  long  delay  of  the  plaintiff  to  redeem  the 
mortgages,  they  had  no  reason  to  suppose^hat  he  ever  in- 
tended so  to  do.  Held,  such  delay  did  not  affect  the  plain- 
tiff's right  to  redeem,  which  could  be  defeated  only  by  a 
foreclosure  of  the  mortgages  ;  that  the  assignment  of  dower 
by  the  assignee  of  the  mortgages  was  not  binding  on  the 
plaintiff,  the  widow  having  no  right  of  dower  without  con- 
tributing her  proportion  towards  the  redemption  ;  and  that, 
if  she  declined  thus  to  contribute,  the  plaintiff  might  redeem, 
on  payment  of  the  two  mortgages,  deducting  the  rents  and 
profits,  and  have  an  assignment  of  the  mortgages.^ 

84.  A  writ  of  entry  to  foreclose  a  mortgage  may  be  main- 
tained, and  a  conditional  judgment  rendered,  against  a 
widow  in  possession,  under  an  assignment  of  dower  by  the 
Probate  Court ;  though  such  assignment  is  W)id.  Although 
in  general,  a  widow  has  a  mere  right,  but  no  seizin,  till  as- 
signment of  dower;  by  statute  she  may  occupy,  with  the 
consent  of  the  heirs,  before  such  assignment.  Hence  the 
defendant  in  this  case  is  not  a  mere  stranger.  She  holds 
under  and  in  right  of  her  husband,  and  may  at  her  election 
have  a  conditional  judgment.^ 

1  Lund  r.  Woods,  11  Met.  5GG.  ^  j^aynijam    y_   Wilmarth,   13    Met. 

2  Niles  V.  Nye,  13  Met.  135.  414. 


406  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

84  a.  Three  mortgages.  The  wife  of  the  mortgagor  re- 
leased her  dower  in  the  second.  The  third  mortgagee  paid 
and  discharged  the  other  mortgages  without  the  knowledge 
or  consent  of  the  mortgagor.  Held,  the  widow  of  the  mort- 
gagor might  claim  dower  against  the  third  mortgagee.  The 
Court  say,  —  the  tenant  (claiming  under  the  third  mortgagee) 
"  took  his  conveyance  subject  to  "  (the  second  mortgage)  "  and 
it  may  be  presumed  that  the  consideration  paid  was  less  by 
the  amount  of  that  incumbrance.  He  paid  off  the  incum- 
brance to  clear  his  own  estate,  and  took  a  discharge.  The 
fact  that  the  tenant  did  not  take  an  assignment,  leads  to  the 
conclusion,  that  he  was  to  pay  the  mortgage  as  part  of  the 
purchase-money." ' 

84  b.  In  Maine,  the  following  cases  upon  this  subject  have 
occurred. 

84  c.  A.  conveved  to  B.,  and  B.  gave  back  a  mortgage  to 
secure  the  consi^ration.  Subsequently  A.  became  indebted 
to  C.  on  a  note  for  an  amount  less  than  the  mortgage,  and, 
by  an  agreement  between  all  the  parties,  at  the  same  time, 
the  mortgage  was  discharged  by  A.  upon  his  receiving  his 
note  to  C,  and  the  balance  in  money ;  and  B.  mortgaged  to 
C.  to  secure  the  amount  of  the  note.  Held,  the  widow  of  B., 
who  was  his  wife  when  all  these  conveyances  were  made, 
was  entitled  to  dower  as  against  C.^ 

84  d.  So,  a  widow  is  not  barred  of  her  dower  against  a 
mortgagee  who  has  foreclosed,  she  not  having  joined  in  the 
mortgage,  by  a  release  of  dower  to  the  purchaser  of  the 
equity.^ 

84  e.  In  Newt  Hampshire,  a  widow  has  dower  in  a  right 
in  equity  to  redeem  against  all  persons,  except  mortgagees 
and  those  claiming  under  them ;  against  whom  she  cannot 
be  endowed,  except  by  payment  of  the  mortgage."^ 

84/  Nor  can  she  claim  dower  against  any  other  person, 

1  Wedge  r.  Moore,  6  Cush.  8,  10.  ^  Littlcficld  v.    Crocker,   30    Maine, 

'^  GsLRCv.  Ward,  25  Maine,  101.  192. 

4  Kossitcr  V.  Cossit,  15  N.  H.  38. 


CH.  XV.]  EQUITY   OF   REDEMPTION.  407 

who,  having  an  interest  in  the  redemption,  has  in  fact  re- 
deemed, except  by  payment  of  a  contribution.^  (s) 

84  g.  But,  if  the  administrator  redeem  with  assets  of  the 
estate,  she  is  let  in  to  dower  without  contribution.^ 

84  h.  Mortgage  during  coverture,  the  wife  relinquishing 
dower.  Held,  on  payment  of  the  notes  secured  by  the  mort- 
gage, out  of  the  estate  of  the  mortgagor,  by  the  administra- 
tor, the  wife  was  entitled  to  dower.^ 

85.  It  has  been  held  in  Pennsylvania,*  that  a  mortgage 
made  without  consideration,  and  for  the  purpose  of  depriv- 
ing the  wife  of  the  mortgagor  of  her  dower,  is  void  as  to  the 
widow  and  creditors,  though  binding  upon  the  administra- 
tor. A  Court  of  Chancery,  in  such  case,  will  enjoin  the 
mortgagee  from  proceeding  to  a  judgment,  and  a  sale  of  the 
whole  premises,  but  will  authorize  a  sale,  subject  to  the 
claim  of  dower.  Upon  a  scire  facias  by  the  mortgagee 
against  the  widow  to  foreclose,  the  Court  will  admit  the 
widow  to  defend ;  and,  if  there  is  a  bond  fide  debt,  there 
shall  be  a  verdict  and  judgment,  giving  to  the  mortgagee  a 
lien  on  the  whole  interest  as  to  the  real  debt,  and  for  the 
whole  amount,  subject  to  the  widow's  thirds;  or,  if  the 
mortgage  was  fraudulently  given,  without  consideration,  and 
for  the  purpose  of  defeating  the  wife,  a  verdict  and  judg- 
ment  for  the  plaintiff,  subject  to  the  widow's  dower.  But 
the  same  principle  does  not  apply  to  the  provision  made  for 
the  widow  in  that  State  by  the  intestate  acts,  in  lieu  of 
dower.  This  is  a  contingent  right,  with  none  of  the  com- 
mon-law privileges  of  dower,  and  subject  to  be  defeated  by 
the  acts  of  the  husband.     Therefore,  in  the  case  supposed, 

1  Rossiter  v.  Cossit,  15  N.  II.  38.  *  Killinger  v.  Eeidcnhauer,  6  S.  &  E. 

ioiJ-  531. 

3  Mathewson  v.  Smith,  1  Angell,  22. 


(s)  la  Clough  V.  Elliott,  3  Fost.  182,  it  is  held,  that  if  land  subject  to  a 
charge  is  devised,  the  widow  of  the  devisee  cannot  have  dower,  without 
contributing  her  proportion  of  the  charore. 


408  THE  LAW   OF  MORTGAGES.  [CH.  XV. 

the  mortgage  cannot  be  wholly  avoided,  upon  the  ground 
that  the  widow  might  have  been  entitled  to  the  whole  estate, 
if  the  intestate  died  without  kindred. 

85  a.  It  js  held  in  Ohio,  that  where  land  is  mortgaged  by 
the  husband,  the  condition  broken  before  marriage,  and  the 
equity  of  redemption  released  by  him  during  the  coverture, 
his  widow  is  not  entitled  to  dower.' 

86.  With  regard  to  the  terms  upon  which  the  widow 
will  be  allowed  to  claim  her  dower,  and  more  especially 
upon  the  question,  whether  she  must  pay  the  whole  mort- 
gage debt,  or  only  her  proportional  share ;  the  following 
remarks  and  decisions  have  been  made.  The  general  prin- 
ciple would  seem  to  be,  though  not  without  some  qualifica- 
tions, that,  like  all  other  persons  claiming  a  partial  or  quali- 
fied interest  in  mortgaged  property,  a  dowress,  in  order  to 
redeem,  must  pay  the  whole  debt,  with  the  right  to  retain 
the  whole  estate,  till  equitably  reimbursed  by  others,  jointly 
interested,  {t) 

86  a.  In  Vermont,  the  Probate  Court  have  exclusive  juris- 
diction of  the  assignment  of  dower;  and,  if  the  dowress 
claim  to  have  a  special  rule  of  apportionment,  can  alone 

1  Eands  v.  Kendall,  15  Ohio,  671. 


(t)  The  distinction  would  seem  to  be,  that  whore  redemption  is  sought 
from  the  mortgagee,  the  whole  debt  must  be  paid ;  but  where  some  other 
party,  claiming  under  the  mortgagor,  redeems,  then,  in  order  to  redeem 
from  such  party,  the  widow  shall  pay  only  her  share.  The  Revised  Stat- 
utes of  Massachusetts,  ch.  60,  s.  2,  provide,  that  if,  upon  a  mortgage  made 
by  the  husband,  the  wife  release  her  dower,  or  if  the  husband  be  seized  of 
land  subject  to  any  mortgage  which  is  valid  against  the  wife  ;  she  shall  have 
dower  as  against  all  except  the  mortgagee,  and  those  claiming  under  him, 
provided,  that  if  the  heir  or  other  person  claiming  under  the  husband  shall 
redeem  the  mortgage,  the  widow  shall  cither  repay  such  part  of  the  money 
paid  by  him,  as  shall  be  equal  to  the  proportion,  which  her  interest  bears  to 
the  whole  value  of  the  premises,  or  she  shall,  at  her  election,  be  entitled  to 
dower  only  according  to  the  value  of  the  estate,  after  deducting  the  money 
so  paid  for  the  redemption  thereof. 


CH.  XV. J  EQUITY   OF  REDEMPTION.  409 

establish  such  rule  in  her  favor.  But,  if  the  Probate  Court 
assign  dower,  generally,  in  an  equity  of  redemption,  without 
determining  the  proportion  which  the  widow  shall  pay  to- 
wards the  incumbrance,  it  is  equivalent  to  saying,  that  it 
shall  be  in  proportion  to  her  estate  ;  and  the  Court  of  Chan- 
cery have  jurisdiction,  upon  a  bill  brought  by  the  dowress 
for  that  purpose,  to  determine  the  proportion  upon  the  gen- 
eral rule  of  equity  in  such  cases,  except  so  far  as  the  parties 
may  have  varied  that  rule,  by  an  agreement  executed  at  the 
time.i 

86  b.  The  mere  fact,  that  the  estate  has  been  purchased 
subject  to  the  incumbrance  and  to  dower,  is  not  sufficient  to 
raise  any  special  rule  of  apportionment.''^ 

86  c.  The  dowress  may  bring  a  bill  in  chancery,  for  ap- 
portionment, whenever  the  incumbrance  becomes  due,  with- 
out first  paying  it.^ 

86  d.  The  general  rule  of  equity  is,  that  all  the  estates 
concerned,  whether  defined  by  quantity  of  interest  and  dura- 
tion, or  by  extent  of  territory,  shall  contribute  towards  the 
incumbrance,  according  to  their  relative  value  when  the  con- 
tribution becomes  obligatory,  which  is,  when  the  debt  falls 
due.* 

86  e.  According  to  this  rule,  when  a  widow  is  endowed  in 
an  equity  of  redemption,  one  third  of  the  incumbrance  should 
be  placed  upon  the  land  covered  by  the  dower,  and  the  re- 
maining two  thirds  upon  the  residue  of  the  land  covered  by 
the  incumbrance.^ 

86/.  But  it  is  competent  for  the  dowress,  the  mortgagee, 
and  the  purchaser  of  the  equity  of  redemption,  subject  to  the 
incumbrance  and  the  dower,  to  agree  upon  a  different  mode 
of  apportionment ;  and  if  they  agi-ee,  although  by  parol,  that 
all  of  the  incumbrance,  except  a  certain  part,  should  be  paid 
from  that  portion  of  the  mortgaged  premises  not  covered 
by  the  dower,  this  agreement,  when  executed,  will  be  irre- 

1  Danforth  r.  Smith,  23  Verm.  247.  2  jbid.         3  ibid.  *  Ibid.  ^  IhiA. 

VOL.  I.  35 


410  THE   LAW   OF  MOKTGAGES.  [CH.  XV. 

vocable,  and  the  Court  of  Chancery  will  have  regard  to  it,  in 
apportioning  the  residue  of  the  incumbrance  between  the 
do\\Tess  and  the  owner  of  the  reversion.' 

86  g.  In  apportioning  an  incumbrance  between  a  dowi'ess 
and  the  owner  of  the  reversion,  it  is  not  competent  for  the 
Court  of  Chancery  to  determine  any  sum,  Avhich  shall  be 
expended  by  the  dowress,  each  year,  for  repairs.^ 

86  h.  There  is  no  rule,  in  Vermont,  requiring  the  dowress 
of  an  equity  of  redemption  to  keep  down  the  interest  upon 
the  incumbrance.^ 

87.  It  is  held  in  Massachusetts,  that  where  the  pur- 
chaser of  an  equity  of  redemption  pays  the  mortgage  debt 
and  takes  an  assignment  of  the  mortgage,  the  mortgagor's 
widow  cannot  redeem  without  paying  the  whole  mortgage 
debt.^  Wilde,  J.,  says  :  ^  —  "  Where  several  are  interested  in 
an  equity  of  redemption,  and  one  only  is  wiUing  to  redeem, 
he  must  pay  the  whole  mortgage  debt ;  and  the  others  inter- 
ested in  the  equity,  w4io  refuse  to  redeem,  are  not  compel- 
lable to  contribute;  for  it  would  be  unreasonable  to  compel 
a  party  to  redeem,  when  perhaps  it  might  be  for  his  benefit 
to  suffer  the  mortgage  to  be  foreclosed.  The  mortgagee, 
however,  is  not  to  be  entangled  with  any  question  which 
may  arise  between  the  owners  of  the  equity  in  relation  to 
contribution,  but  has  the  right  to  insist  on  an  entire  redemp- 
tion. If,  therefore,  several  estates  are  mortgaged  by  one 
mortgage,  and  the  mortgagor  afterwards  conveys  the  estates 
separately  to  different  persons,  although  each  owner  of  the 
separate  estates  may  redeem ;  yet  it  can  only  be  allowed  by 
payment  of  the  whole  mortgage  debt.  And  the  party  so  re- 
deeming will  be  entitled  to  hold  over  the  whole  estate  mort- 
gaged, until  he  shall  be  reimbursed  what  he  has  been  thus 
compelled  to  pay  beyond  his  due  proportion.  He  is  consid- 
ered as  assignee  of  the  mortgage,  and  stands,  after  such  re- 
demption, in  the  place  of  the  mortgagee,  in  relation  to  the 

1  Diinforth  v.  Smith,  23  Verm.  247.  »  Gibson  v.  Crchorc,  5  Tick.  14G. 

'^  ll)id.  ^  lb.  152. 

a  Ibid. 


CH.  XV.]  EQUITY   OF   REDEMPTION.  411 

other  owners  of  the  equity.  So,  if  there  be  tenant  for  life 
and  remainder-man  of  an  equity,  either  may  redeem,  but  not 
without  paying  the  whole  mortgage.  In  like  manner,  a 
dowress  or  jointress  of  lands  mortgaged  may  redeem,  she 
paying  the  mortgage  debt,  and  may  hold  over,  if  the  heir 
refuses  to  contribute,  until  she  and  her  executor  shall  be 
repaid  with  interest."  (u) 

88.  In  the  same  case  Judge  Wilde  remarks,^  that  the 
widow  may  redeem  without  any  previous  assignment  of 
dower,  because  such  assignment  does  not  affect  her  equitable 
right  of  redemption,  and  she  has  no  right  to  demand  such 
assignment  as  against  the  mortgagee,  before  redeeming,  nor 
is  an  assignment  by  the  heirs  necessary,  because  she  could 
not  redeem  a  part  without' redeeming  the  whole.  And  this 
Court  has  fuU  jurisdiction  of  the  claim,  under  the  statute 
which  provides  a  bill  in  equity  for  the  mortgagor  "  or  other 
person  claiming  as  aforesaid,"  and  that  judgment  may  be 
rendered  agreeably  to  equity  and  good  conscience  ;  and  also 
the  statute  relating  to  trusts  and  the  settlement  of  estates. 

88  a.  Mortgage  of  two  parcels  of  land,  in  which  there  was 
a  right  of  dower.  The  mortgagor  afterwards  conveyed  all 
his  interest  in  one  of  them,  A.,  and,  in  consideration  of  the 
wife's  releasing  her  dower,  conveyed  to  her  a  life-estate  in 
the  other  parcel,  B.,  and  she  entered  and  took  the  profits.  The 
plaintiff  purchased  from  the  mortgagor  the  lot  B.  One  of 
the  defendants,  having  purchased  lot  A.,  takes  an  assignment 
of  the  mortgage,  and  enters  for  foreclosure.  The  plaintiff 
brings  a  bill  to  redeem  against  the  assignee  of  the  mortgage 

1  5  Pick.  149,  1.50. 


(u)  In  another  case  in  IMassacbusetts,  it  is  said  by  the  same  Judge  :  '*  In 
Swainc  t".  Perine,  5  Johns.  Ch.  482,  it  was  held,  that  if  the  heirs  pay  a  mort- 
gage, the  wife  shall  contribute  as  the  sum  paid  by  them ;  but  as  far  as  the 
husband  had  reduced  the  mortgage,  it  was  a  reduction  for  her  benefit  as 
well  as  his.  And  the  same  rule  applies  to  a  payment  by  the  husband's 
assignee  during  his  life."     Eaton  i'.  Simouds,  14  Pick.  108. 


412  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

and  the  wife.  Held,  the  wife  was  not  bound  to  contribute 
towards  the  redemption,  nor  to  account  for  the  profits  of  the 
second  parcel,  the  lease  for  life  having  been  made  to  her  in 
lieu  of  her  right  of  dower  in  both  parcels.  Also,  that  as  the 
other  defendant  could  not  have  compelled  the  wife  to  pay 
over  the  rents  and  profits  of  lot  B.,  without  giving  her  a  right 
of  dower  in  both  lots  ;  he  was  not  bound  to  account  for 
them,  and  that  the  plaintiff  had  no  equitable  claim  to  them, 
as  he  purchased  after  the  lease  for  life,  and  consequently  at 
a  reduced  price  on  that  account.  Also,  that  the  assignee  of 
the  mortgage  was  bound  to  account  for  the  rents,  &c.  of  lot 
A.  from  the  time  of  his  entry  to  foreclose.  Also,  that  the 
plaintiff,  upon  paying  the  whole  mortgage  debt,  deducting 
the  rents  and  profits  of  lot  A.,  should  hold  the  whole,  except 
the  part  leased,  till  reimbursed  the  amount  paid  by  him 
over  his  share  of  the  mortgage  debt.^ 

89.  Writ  of  dower,  by  the  widow  of  a  mortgagor,  against 
a  purchaser  of  the  equity  of  redemption  from  the  mort- 
gagor's administrator,  who  sold  under  a  license  from  the 
Probate  Court.  The  defendant  had  paid  the  mortgage 
debt,  but  the  plaintiff  had  not  contributed  or  offered  to  con- 
tribute any  thing  towards  the  discharge  of  the  mortgage. 
Held,  the  action  could  not  be  maintained.  The  Court  say : 
"  This  demandant  was  entitled  to  her  dower  in  the  equity 
of  redemption."  But  a  widow  "  can  maintain  no  writ  of 
dower  against  the  mortgagee  or  his  assignees,  until  she  has 
redeemed  the  land,  by  paying  the  amount  due  on  the  mort- 
gage. Nor  against  any  person,  who,  having  the  right  to 
redeem  the  land,  has  paid  the  amount  due  on  the  mortgage, 
until  she  has  contributed  her  due  proportion  of  the  money 
thus  paid,  according  to  her  interest."  ^ 

90.  In  a  late  case,^  Shaw,  C.  J.,  thus  states  the  rules  of 
law  upon  this  subject. 

"  The  demandant,  having  thus  joined  with  her  husband  in 


1  Brooks  V.  Ilai-wood,  8  Pick.  497.  '-^  Brown   v.  Liipliani,   3    Cush.    553, 

^  Cass  V.  Martin,  G  N.  II.  25,  20.  554. 


en.  XV.]  EQUITY   OF  REDEMPTION.  413 

a  mortgage  to  secure  the  payment  of  a  debt,  has  barred  her- 
self of  her  right  of  dower,  if  necessary  to  give  effect  to  her 
act  of  release ;  that  is)  so  far  as  shall  be  necessary  to  secure 
the  payment  of  the  debt,  for  which  the  estate  was  thus 
hypothecated.  After  such  an  alienation,  she  can  only  avoid 
the  effect  of  her  deed  and  be  restored  to  her  right  of  dower, 
in  one  of  two  modes. 

"  1.  When  the  debt  shall  be  paid  and  satisfied  by  the  hus- 
band or  by  some  person  acting  in  his  behalf,  and  in  his  right, 
so  that  the  mortgage  is  extinguished,  by  means  of  which  the 
whole  object  and  purpose  of  giving  it  is  accomplished. 

"  2.  By  a  redemption  by  payment  of  the  debt  herself.  The 
latter  can  only  be  sought  by  a  process  in  equity,  and  tender- 
ing the  payment  of  the  mortgage  debt."  "  In  order  to  such 
payment,  so  as  to  extinguish  the  mortgage,  the  debt  must  be 
paid  by  the  husband,  or  out  of  the  husband's  funds,  or  by 
some  person,  as  personal  representative,  assignee,  or  person 
standing  in  some  other  relation,  which  in  legal  effect  makes 
him  mortgagor  and  debtor,  and  one  whose  duty  it  is  to  pay 
and  discharge  the  mortgage  debt." 

91.  On  the  other  hand  it  is  said,  a  dowress  paying  her 
proportion  of  the  mortgage-money  has  a  right  to  redeem  a 
mortgage,  and  to  hold  over  till  satisfied  the  rest.^ 

92.  So  in  Massachusetts  it  is  held,  that  a  widow,  who  has 
released  her  dower  in  a  mortgage  deed  of  the  husband,  may 
redeem,  upon  paying  her  due  proportion  of  the  mortgage 
debt.  The  value  of  her  life-estate  is  to  be  adjusted,  by  tak- 
ing into  consideration  her  age  and  the  state  of  her  health, 
and  by  ascertaining  the  value  of  the  residue  of  the  estate, 
including  the  reversion  of  her  third  part ;  and  her  proportion 
of  the  debt  she  is  bound  to  pay  will  be  according  to  the  pro- 
portional value  of  her  estate,  and  that  of  the  defendant.^ 

93.  The  following  miscellaneous  cases  have  been  decided 
upon  this  subject. 


1  Palmes  v.  Danby,  Free.  Chan.  137.        ^  y^u  Vronker  v.  Eastman,  7  Met. 
See  Tillinghast  v.  Fry,  1  Ang.  { R.  I.)  53.     1 57. 

35* 


414  THE   LAW   OF  MORTGAGES.  [CH.  XV. 

94.  The  owner  of  land  made  a  mortgage  of  it,  having  pre- 
viously made  a  written  contract  for  the  erection  of  a  build- 
ing thereon,  which  contract  was  recorded,  for  the  purpose  of 
giving  the  builder  a  lien  upon  the  land,  under  the  statute. 
The  wife  of  the  mortgagor  joined  in  the  mortgage,  and  the 
mortgagee  had  no  notice  of  the  contract  above  mentioned. 
The  builder  caused  the  property  to  be  sold  under  the  lien, 
and  an  assignee  of  the  mortgage  bought  his  interest.  The 
mortgagor  having  died,  his  widow  brings  a  bill  in  equity 
against  the  assignee  to  redeem.  Held,  she  might  redeem 
without  paying  any  part  of  the  sum  thus  paid  by  the 
assignee.! 

95.  A  mortgagor  devised  the  estate  to  his  son.  The  son 
died,  leaving  a  widow.  The  executor  of  the  father  sold  the 
estate,  became  himself  the  purchaser,  and  redeemed  the 
mortgage,  paying  one  half  of  it  with  assets  in  his  hands  as 
executor,  as  ordered  by  the  will,  and  the  rest  with  his  own 
funds.  The  widow  and  heirs  of  the  son  affirmed  the  sale. 
Held,  the  widow  should  have,  as  dower,  the  interest  for  her 
life  of  one  third  of  the  price  of  the  equity,  and  one  third  of 
the  sum  paid  from  the  estate  by  the  executor  to  redeem.^ 

96.  The  purchaser  of  an  equity  of  redemption,  from  the 
mortgagor's  administrator,  gave  a  bond  to  the  latter  to  pay 
the  mortgage  debt,  and  afterwards  paid  it,  taking  an  assign- 
ment of  the  mortgage.  The  widow  of  the  mortgagor  brings 
a  bill  in  equity  against  the  assignee  to  redeem.  Held,  the 
bond  could  not  be  set  up  by  the  plaintiff,  she  not  being  a 
party  to  it,  either  by  way  of  estoppel  or  otherwise.  It  was 
a  personal  obligation  of  indemnity,  to  secure  the  personal 
estate  against  any  claim  for  the  mortgage  debt.'^ 

97.  Where  one  of  several  mortgagees  was  to  have  posses- 
sion of  part  of  the  premises  for  life,  and  a  pecuniary  provis- 
ion, under  certain  circumstances,  not  exceeding  a  particular 
sum  ;  held,  a  tender  by  the  widow  to  an  assignee  of  the  hus- 


'  Van  Vronkcr  v.  Eastman,  7  Met.         ^  Jcnnison  v.  Hapgood,  14  Pick.  345. 
157.  ^  (jibsoa  v.  Crcliore,  5  Tick.  14G. 


CH.  XV.]  EQUITY   OF   REDEMPTION.  415 

band  of  a  sum  of  money,  as  an  indemnity  against  such  pro- 
vision, did  not  discharge  the  mortgage,  or  give  her  a  claim  to 
dower.  The  husband  or  his  assignee  would  be  entitled  to 
possession,  and  the  widow  to  dower,  until  a  claim  made  for 
such  provision.^ 

98.  The  administrator  of  a  mortgagee,  having  entered  for 
breach  of  condition,  allowed  the  mortgagor's  widow  to  re- 
main in  possession  of  part  of  the  land.  Held,  he  should 
account  to  a  purchaser  of  the  equity  of  redemption  for  the 
profits  of  the  whole  farm,  after  the  lapse  of  a  reasonable  time 
to  eject  her  by  legal  process.^ 

99.  The  Revised  Statutes  of  Massachusetts,  c.  60,  §  3, 
provide,  that  when  a  widow  is  entitled  to  dower,  in  lands  of 
which  her  husband  died  seized.,  and  her  right  to  dower  is  not 
disputed  by  the  heir  or  devisees,  it  may  be  assigned  to  her 
by  the  probate  court.  Under  this  statute  it  has  been  held 
in  a  late  case,  that  where  a  nportgagor  is  in  possession  at 
his  death,  he  is  sufficiently  seized,  to  entitle  his  widow  to  an 
assignment  of  dower,  upon  petition  to  the  probate  court.'' 
In  this  case,  a  widow  petitioned  the  probate  court  for  an 
assignment  of  dower  in  real  estate  of  the  husband.  It  ap- 
peared that  he  had  conveyed  the  estate  in  fee  and  in  mort- 
gage, she  joining  in  the  deed  and  refinquishing  her  dower. 
Also,  that  the  administrator  was  the  mortgagee,  and  did  not 
object  to  an  assignment  of  dower  in  the  whole  estate,  the 
residue  being  of  sufficient  value  to  pay  the  mortgage  debt ; 
and  that  no  person  objected,  as  heir  or  devisee,  to  the 
assignment.  Held,  the  petition  should  be  granted.  The 
Court  say  :  —  "  The  appellant  is  entitled  to  dower,  as  against 
every  person  except  the  mortgagee  and  those  claiming  under 
him.  It  is  so  expressly  provided  by  the  Rev.  Sts.  c.  60,  §  2, 
and  she  may  at  her  election  have  her  dower  assigned  to  her 
according  to  the  value  of  the  estate,  after  deducting  the  mort- 
gage debt ;  or  it  may  be  assigned  to  her  in  the  whole  estate, 


1  Billiard  v.  Rowers.  10  N.  H.  500.  8  Henrv'.s  case,  4  Cusli.  257. 

2  Thayer  v.  RicliarUs,  19  Pkk.  398. 


416  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

'provided  that  if  the  heir  or  other  person  claiming  under  the 
husband  shall  redeem  the  mortgage,  she  shall  repay  such 
part  of  the  money  paid  by  him,  as  shall  be  equal  to  the  pro- 
portion, which  her  interest  in  the  mortgaged  premises  bears 
to  the  whole  value  thereof.'  Whether  she  would  be  liable  to 
pay  such  proportion,  should  the  mortgage  be  foreclosed,  may 
be  a  question,  which,  however,  is  not  raised  on  this  appeal ; 
whatever  may  be  the  appellant's  future  liabilities,  she  has  the 
right  to  have  her  dower  assigned  to  her  in  the  whole  estate, 
the  mortgagee  not  objecting.  And  this  assignment  the  Judge 
of  Probate  had  a  right  to  make.  By  the  third  section  of  the 
same  chapter  it  is  enacted,  that  'when  a  widow  is  entitled  to 
dower,  in  lands  of  w^hich  her  husband  died  seized,  and  her 
right  of  dower  is  not  disputed  by  the  heirs  or  devisees,  it 
may  be  assigned  to  her,  in  whatever  counties  the  lands  may 
lie,  by  the  Judge  of  Probate  for  the  county,  in  which  the  estate 
of  the  husband  is  settled.'  In  the  present  case,  the  appel- 
lant's right  to  dower  was  disputed  by  no  one  ;  and  her  hus- 
band died  seized  of  the  estate  in  which  dower  is  claimed, 
notwithstanding  the  mortgage.  The  title  of  a  mortgagor  of 
real  estate  is  peculiar,  for  although  by  the  mortgage  deed  a 
conditional  title  to  the  whole  estate  passes,  and,  as  between 
the  mortgagor  and  mortgagee,  the  latter  becomes  seized  of 
the  legal  estate,  yet,  as  the  mortgage  is  intended  only  as 
security  for  a  debt,  the  mortgage,  as  between  the  mortgagor 
and  all  other  persons,  is  considered  only  as  a  pledge  and  an 
incumbrance,  the  mortgagor  still  remaining  the  owner  of  the 
estate.  Therefore,  the  husband  did  die  seized  of  the  mort- 
gaged premises." 


CH.  XVI.]      EQUITY   OF   REDEMPTION. — TERMS    OF,   ETC.  417 


CHAPTER   XVI. 

EQUITY  OF  REDEMPTION.  TERMS  OF  REDEMPTION.  ACCOUNT  OF 
A  MORTGAGEE  IN  POSSESSION.  HIS  LIABILITY  FOR  RENTS, 
AND   CLAIM   FOR   EXPENDITURES. 


1.  The  mortgafree  is  liable  to  account, 
as  a  steward  or  bailiff;  extent  of  his  lia- 
bility. 

18.  Mode  of  computing  interest;  whe- 
ther the  mortf.'a<.fce  is  chargeable  with 
interest;  annual  rests.  ^ 

27.  What  provisions  in  a  mortgage 
will  bind  the  party  to  pay  interest. 

31.  Interest,  in  case  of  a  particular 
tenant  and  reversioner. 


37.  For  what  repairs  and  other  expen- 
dilurcs  the  mortgagee  shall  he  allowed. 

56.  Sale  of  a  part  of  the  mortgaged 
proijcrty ;  proceeds  to  l)e  accounted  for. 

."JO.  Accounting  for  rents,  &c.,  to  sub- 
sequent mortgagees,  creditors,  assignees, 
&c. 

64.  Receivers. 

76.  Parties  in  case  of  a  decree  to  ac- 
count for  rents,  &c. 


1.  With  regard  to  the  terms,  upon  which  redemption  of  a 
mortgage  may  be  had,  or  the  mutual  settlement  and  adjust- 
ment between  the  mortgagee  and  mortgagor  ;  it  is  held,  that 
a  mortgagee  in  possession  is  the  steward  or  bailiff  of  the 
mortgagor,  without  a  salary,^  and,  as  such,  accountable  to 
him  or  his  assignee,^  or  a  subsequent  mortgagee,^  [a)  for  the 
profits.  The  rents  and  profits  are  said  to  be  in  equity  inci- 
dents de  jure  to  the  ownership  of  the  equity  of  redemption.^ 

2.  "  A  mortgagee,  entering  into  possession,  and  taking  the 

1  Cholmondeley  v.  Clinton,  2  Jac.  &  '^  Moore  v.  Degraw,  1  Halst.  Ch.  346. 
W.  179.  4  Qoj.jon  w.  Lewis,  2  Sumn.  143.    See 

2  Ruckman  v.  Astor,  9  Paige,  517.  ch.  22,  §  48,  et  seq. 


(a)  It  is  held,  that  one  in  possession  of  mortjiaged  premises,  under  a  title 
subject  to  the  mortgage,  must  account  to  the  mortgagee  for  the  rents  and 
profits.  Latimer  v.  Moore,  4  McL.  110.  A  decree  of  foreclosure  was  opened 
after  enrolment,  on  application  and  motion  of  a  subsequent  mortgagee,  in 
order  to  charge  tlie  plaintiff  with  a  reasonable  rent,  the  prior  mortgage 
having  been  assigned  to  the  plaintiff  when  he  was  tenant  under  the  mort- 
gagor, and  he  having  filed  the  bill  to  foreclose  the  prior  mortgage,  and  in 
the  mean  time  retained  possession.     Moore  v.  Degraw,  1  Halst.  Cha.  346. 


418  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

profits,  must  be  deemed  to  take  them  in  his  character  as 
mortgagee.  If  in  any  sense  he  can  be  said  to  take  them  as 
agent,  it  must  be  as  agent-mortgagee.  Before  forfeiture,  he 
may  properly  be  deemed  in  some  sort  an  agent,  {b)  But 
after  forfeiture  his  possession  is  under  his  title  ;  and  if  he 
then  takes  the  profits,  he  must  be  deemed  to  take  them  as 
mortgagee,  and  not  otherwise,  unless  there  be  the  most 
plenary  and  irresistible  proof,  that  he  has  disclaimed  that 
character,  and  taken  them  to  account,  and  has  accounted 
therefor,  as  a  stranger  agent."  ^ 

3.  In  general,  however,  the  mortgagee  is  liable  only  for  the 
actual  receipts,  if  they  can  be  ascertained,  unless  he  is  guilty 
of  fraud,  of  some  gross  wrong  or  neglect,  or  wilful  default,  as 
by  the  rejection  of  a  good  tenant  or  the  admission  of  an  in- 
sufficient one.^  Not  for  the  rent  of  an  absconding  tenant, 
unless  guilty  of  negligence.^  If  the  amount  of  rents  received 
cannot  be  fixed,  he  is  liable  for  a  fair  occupation  rent.^  (c) 

4.  The  rule  has  also  been  stated  in  this  form.     If  the  mort- 

1  Dexter  v.  Arnold,  I  Sumii.  116, 117.         ^  S:\iindcrs  v.  Frost,  5  Pick.  259. 

2  yee  Beare  v.  Trior,  6  Beav.  183;  *  Gordon  i;.  Lewis,  2  Siimii.  144.  See 
Hogan  V.  Stone,  1  Ala.  U.  S.  496.  Truloek  v.  Robey,  15  Sim.  265. 


(h)  Entry  by  a  mortgagee,  before  hreach  of  condition,  is  regarded  as  a 
harsh  proceeding,  contrary  to  the  intention  of  the  parties,  and  unwarranted 
by  any  default  of  the  mortgagor;  and  therefore  the  mortgagee  will  be  held 
to  a  very  strict  account  of  the  rents  and  profits.  He  cannot,  after  discharge 
of  the  mortgage,  recover  from  the  mortgagor  for  repairs  not  necessary  to 
preserve  the  estate,  lluby  v.  Abyssinian,  &c.,  3  Shcpl.  30G.  In  Maine  and 
Ma.ssachusetts,  the  mortgagee,  in  such  case,  shall  account  for  the  clear  rents 
and  profUx.  INIass.  Rev.  Sts.  635  ;  Maine  Rev.  Sts.  553.  Parol  evidence  is 
not  admissible  that  he  was  not  to  account.  Davis  v.  LaGarter,  20  Ala.  561 ; 
Saunders  v.  Frost,  5  Pick.  259.  His  liability  is  that  of  a  provident  owner. 
Shaefler  v.  Chambers,  2  Ilalst.  Ch.  548;  M'Conncl  v.  Ilolobush,  11  lb.  61. 

(c)  Tiie  mortgagee  of  a  farm  has  no  right  to  let  it  lie  untilled,  because  the 
house  on  it,  or  the  house  and  farm  together,  were  not  rented ;  nor  to  let  it 
go  to  waste.  But  he  is  bound  to  keep  it  in  good  ordinary  repair,  and,  in 
case  of  a  farm,  good,  ordinary  husbandry.  Shaeffer  v.  Chambers,  2  llalst. 
Ch.  548. 


CH.  XVI.]        EQUITY   OF   REDEMPTION.  —  TERMS    OF,    ETC.  419 

gagee  himself  occupies,  he  is  accountable  for  the  utmost 
value  (cl)  the  land  would  have  produced  with  ordinary  care, 
exclusive  of  taxes  and  repairs  ;  but,  if  he  enters  into  receipt 
of  the  rents,  only  after  the  rate  of  the  rent  reserved.'  If  the 
mortgagee  occupy  himself,  he  cannot  be  allowed,  for  his  care 
of'  the  estate,  a  commission  on  the  rent  for  which  he  is  re- 
quired to  account.-  So  it  has  been  held,  that  no  allowance 
is  to  be  made  to  a  mortgagee  for  his  management  of  the 
estate,  beyond  legal  interest,  notwithstanding  an  agreement 
for  that  purpose."-^ 

5.  So,  where  a  mortgage  provided,  that  in  order  to  secure 
the  regular  payment  of  the  debt,  the  mortgagee  should  be  in 
receipt  of  the  rents,  and  have,  as  receiver,  £60  a  year  for  his 
trouble,  and  after  retaining  this  amount  with  the  interest, 
should  pay  the  balance  to  the  mortgagor ;  it  was  held,  that 
he  was  liable  to  a  qui  tarn  action  for  usury.* 

6.  So,  in  Bonithon  ik  Hockmore,^  it  was  held,  that  ho 
allowance  should  be  made  a  mortgagee  or  trustee  for  their 
care  and  pains  in  managing  the  estate. 

7.  But,  on  the  other  hand,  it  is  said,  the  mortgagee  may 
charge  for  the  collection  of  rents.  So  also  he  may  agree  with 
the  mortgagor  for  a  receiver,  to  be  paid  by  the  latter.^  So, 
the  mortgagee  is  sometimes  allowed  a  commission  for  his 
services  in  receiving  the  rents.     In  Massachusetts,  the  usual 

12  Greenl.  Cruise,  113,  114.  n.     See     Marsh.  335;  French  v.  Baron,    2  Atk. 
liijhihinl   r.  Burr,  17    Conn.   556;  Kel-     120. 
lo;rs  V-  Hockwfll,  19  Ih.  446.  •*  Scott  v.  Brest,  2  T.  K.  238. 

-  Eaton  1-.  Simonds,  14  Pick.  98.  ^  1  Vern.    316;  Ace.    Clark   i'.  Rob- 

^  Brcckenriilge    v.    Brooks,  2  A.  K.     bins,  6  Dana,  350. 

"  Coote,  404. 


(d)  Elsewliere  termed  a  reasonable  rent.  Moore  v.  Degraw,  1  Ilalst.  Ch. 
34G.  A  mortgagee  of  slaves  in  possession  is  bound  to  use  reasonable  dili- 
gence in  keeping  them  usefully  employed,  so  as  not  only  to  pay  their  neces- 
sary expenses,  but  also  obtain  reasonable  compensation  for  their  labor.  And 
this,  though  he  treated  them  humanely,  provided  ibr  their  wants,  and  made 
them  comlbrtable,  or  managed  them  as  the  mortgagor  had  done.  Bennett  v. 
Butterwortii,  12  How.  367.  • 


420  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

amount  is  five  per  cent.     But  there  is  no  fixed  rule  upon  the 
subject,  and  he  is  not  restricted  to  this  per  centage.^ 

8.  So,  it  is  said  to  be  a  general  rule,  founded  on  the 
jealousy  which  courts  entertain  at  the  interference  of  the 
mortgagee  with  the  estate,  that  if  he  be  in  possession,  and 
receive  the  rents,  he  shall  be  allowed  nothing  for  his  trouble. 
But  if  the  estate  lie  at  such  a  distance  from  the  place  of  his 
residence,  as  that  he  must  necessarily  have  employed  a  bailiff, 
if  the  property  had  been  his  own,  he  will  be  allowed  such 
sums  as  he  actually  paid  to  a  bailiff.^ 

9.  It  is  said,  that  in  order  to  redeem  the  estate,  the  mort- 
gagor wOl  be  required  to  pay  all  that  is  equitably  due  as 
incident  to  the  debt.-^  But  the  mortgagee  cannot  make  a 
profit  out  of  the  mortgage."*  So  also,  that  the  mortgagor 
must  pay  all  debts  forming-  a  charge  upon  the  land."* 

10.  A  mortgagee  is  not  bound  to  pay  over  rents,  &c.,  while 
any  part  of  the  debt,  charged  upon  the  portion  of  the  estate 
belonging  to  the  party  who  claims  them,  remains  unpaid.^ 
But  he  must  apply  the  rents  received  by  him  to  the  mortgage 
debt ;  not  to  other  claims.  They  must  also  be  applied  to  the 
principal  as  well  as  interest  of  the  debt."  They  are  to  be 
applied  as  they  accrue  to  keep  down  the  interest. 

11.  A  mortgagee  must  account,  as  such,  for  rents  received 
by  him,  although  an  agreement  was  made  between  him  and 
the  mortgagor  to  apply  them  to  an  independent  claim ;  if 
after  such  agreement  the  claim  became  invalid  as  a  lien  upon 
the  estate.  Thus,  a  mortgagor  was  indebted  to  the  mort- 
gagee in  a  building  contract,  a])plying  to  the  mortgaged 
property,  w^iich,  though  duly  recorded,  had  not  been  enforced, 
according  to  law,  by  a  suit  withhi  six  months.  The  mort- 
gagee entered  for  breach  of  condition,  and  it  was  thereupon 

1  Adams  v.   Brown,  Law  Ilt'i).  May,  '  Walton  v.  Witliinfrton,  9  Miss.  549. 

1851,  f)  38;  7  Cii-li.  2'it).  ^  Tluiip  v.  Fcltz,  6  B.  Mon.  6  ;  Cootc, 

■■'  1  I'ow.  2'.).'),  h-  11.;  (iill)Crt  c.  Dyne-  458. 

ley,  .'1  M.  &  G.  12.  ''  Bell  v.  Mayor,  &c.,  10  PiiiRC,  49. 

■'•Bank,  &c.  V.    Kosc,   1    Strobli.  Eq.  7  Walton  t;.'Witliingtoii,  9  Miss.549. 
(S.  C.)  257.  See  Tciiiient  v.  Dewees,  7 
Barr.  y05.                       • 


CH.  XVI.]        EQUITY    OF   REDEMPTION.  —  TERMS   OF,  ETC.  421 

verbally  agreed  between  the  parties,  that  he  should  let  the 
estate,  and  apply  the  rents  to  the  building  contract.  Before 
any  rent  had  been  paid  or  become  due,  the  mortgagor  filed  a 
petition  mider  the  insolvent  law,  and  subsequently  rents  were 
paid  to  the  mortgagee.  Upon  a  bill  in  equity,  filed  by  the 
assignee  of  the  mortgagor,  against  a  purchaser  of  the  estate 
from  such  assignee,  and  the  mortgagee ;  held,  the  rents 
received  by  the  mortgagee  must  be  considered  as  received  by 
Mm  in  that  capacity,  and  as  such  accounted  for  by  him  ;  the 
lien  of  the  contract  having  come  to  an  end,  by  the  failure  to 
commence  a  suit  thereupon,  as  provided  by  law.  In  regard 
to  the  agreement  for  applying  the  rents  to  such  contract,  the 
, Court  say  :  —  "  The  agreement  to  appropriate  the  rents,  to 
be  received  by  the  defendants,  towards  their  building  con- 
tract, could  not  by  its  own  force  bind  the  estate.  So  long  as 
he  had  a  disposing  power,  so  long  as  he  himself  had  a  power 
to  receive  the  rents,  that  is,  before  his  insolvency,  if  the  de- 
fendants had  received  any  such  rent  and  appropriated  it,  it 
would  have  enured  by  way  of  payment,  and  been'  available. 
But  no  rents  had  been  received  by  them  under  the  agreement. 
When  the  debtor  became  insolvent,  legal  proceedings  were 
instituted,  under  which  all  his  property  and  rights  to  property 
passed  to  his  assignee  for  his  general  creditors.  It  vested  in 
his  assignee  his  right  in  equity  of  redeeming  the  house,  the 
reversion,  if  it  was  then  let,  and  aU  the  rents  which  accrued 
and  became  payable  ;  but  as  no  rent  was  then  payable,  none 
could  be  appro])riated  under  the  agreement,  because  the  dis- 
posing power  of  the  debtor  over  it  was  then  gone."  ' 

11  a.  After  a  mortgage  of  tan  vats,  an  agreement  was 
made  between  the  parties  for  tanning,  the  mortgagor  to  fur- 
nish the  vats.  He  absconded,  leaving  the  mortgagee  to  finish 
the  tanning  of  certain  leather,  and  the  latter  occupied  till  the 
tanning  was  completed  ;  a  part  of  the  time  under  an  execu- 
tion founded  upon  the  mortgage.  Held,  while  the  mortgagee 
occupied  under  the  contract,  he  might  apply  the  rents  and 

1  Hilliard  v.  Allen,  4  Cush.  532.  537. 

VOL.  I.  36 


422  THE   LAW  OF  MORTGAGES.  [CH.  XVI. 

profits  to  that  account ;  but  after  taking  possession  under  the 
execution,  he  must  account  for  them  as  mortgagee.^ 

12.  The  amount  of  rents  received  by  the  mortgagee  is  to 
be  made  up  to  the  time  of  the  master's  report.^ 

13.  And  upon  a  decree  of  strict  foreclosure,  where  the 
mortgagee  is  in  possession,  if  the  premises  are  redeemed 
within  the  time  allowed  by  the  decree,  the  mortgagee  must 
account  for  the  rents  and  profits  subsequent  to  the  decree.^(e) 

14.  But  a  mortgagee  in  possession,  having  obtained  a 
decree  of  foreclosure,  is  not  liable  at  law  to  the  mortgagor 
for  the  rents  and  profits  after  such  decree  ;  nor  for  those  prior 
to  the  decree,  unless  allowed  by  the  master  on  taking  the 
accounts.^ 

15.  If  the  assignee  of  a  mortgage,  cotemporaneous  with 
that  given  to  the  plaintiff",  enter  and  take  the  profits,  he  is 
liable  for  them  as  joint  owner.  And  his  intention,  or  agree- 
ment with  the  mortgagor,  is  immaterial.^ 

16.  A  mortgagee  in  possession,  being  regarded  as  a  trustee, 
and  accountable,  as  such,  for  the  rents  and  profits,  will  be 
held  responsible  for  them  in  case  of  his  assigning  the  estate 
to  an  insolvent  person,  without  the  mortgagor's  consent,  this 
being  a  breach  of  trust.*^ 

16  a.  A  mortgagor  sold  the  estate,  the  purchaser  assuming 
the  mortgage,  and  giving  his  own  notes  with  a  surety,  as 
collateral  to  the  mortgage  debt.     Suit  was  brought  against 

1  Wood  V.  Fclton,  9  Tick.  171.  ^  Cliapm.in  v.  Smith,  9  Verm.  153. 

^  Ilolahird  v.  Burr,  17  Conn.  556.  ""  Holabird  v.  Burr,  17  Conn.  556. 

«  Euckman  v.  Astor,  9  Paige,  518.  ^  1   Coote,  427,  428  ;  Ncale  v.  Hag 

tliorj),  3  Bland,  590. 


(e)  In  Ruckman  v.  Astor,  9  Paige,  517,  it  was  liuld  that  a  purchaser  of 
mortgaged  premises,  redeemed  -within  the  time  allowed  by  the  Act  of  1837, 
concerning:  the  sale  of  real  estate  under  mortgage,  cannot  retain  the  rents 
and  profits  accruing  between  the  sale  and  the  time  of  redemption,  in  addition 
to  the  amount  of  his  bid  and  ten  per  cent,  interest  thereon,  although  the 
owner  of  the  equity  neglected  to  give  the  requisite  security,  to  prevent  the 
purchaser  from  taking  possession  immediately  after  confirmation  of  the  report 
of  the  sale. 


CH.    XVI.]        EQUITY   OF   REDEMPTION.  —  TERMS    OF,  ETC  423 

the  surety,  and  his  estate  being  small,  the  judgment  compro- 
mised, the  purchaser  not  objecting.  Held,  the  mortgagee  was 
liable  to  account  only  for  so  much  as  he  received,  but  the 
costs  of  suit  should  not  be  deducted.^ 

17.  Bill  for  redemption.  The  plaintiff  claimed  at  the  hear- 
ing some  deduction  from  the  debt,  but  alleged  no  receipt,  and 
prayed  for  no  account  of  rents,  but  only  averred  that  defend- 
ant threatened  to  receive  them,  and  turned  his  cattle  on  the 
land.     Held,  no  deduction  should  be  made  on  this  account.^ 

17  a.  Where  a  mortgagee,  after  entering  for  foreclosure, 
receives  payment  of  the  mortgage  debt,  without  allowing 
any  thing  for  the  use  of  the  property,  the  mortgagor  may 
maintain  an  action  for  money  had  and  received  against  him, 
but  not  an  action  for  use  and  occupation.^ 

18.  According  to  the  general  rule,  that  the  mortgagee  shall 
get  nothing  beyond  the  principal  and  interest  of  his  debt,  it 
seems  he  is  accountable  for  interest  on  the  surplus  rents  over 
the  interest  on  the  mortgage.  It  is  also  said,  that  generally, 
where  the  relation  of  mortgagor  and  mortgagee  is  undisputed, 
if  the  latter  receive  the  rents  after  the  debt  is  satisfied,  and 
retain  them  to  his  own  use,  he  is  liable  for  interest.  But  if 
he  retained  them  under  a  mistake,  supposing  the  mortgagor's 
rights  to  be  extinguished,  he  would  not  be  liable  for  interest, 
till  after  notice  of  the  adverse  claim.* 

19.  An  agreement  was  made  between  mortgagor  and  mort- 
gagee and  a  builder,  that  tlie  builder  should  rebuild  the 
premises,  and  receive  a  lease  at  a  nominal  rent,  he  granting 
an  underlease  to  the  mortgagee  at  a  rent  of  X250,  and  on 
payment  of  £1,000.  The  buildings  were  completed,  and  the 
mortgagee  took  possession,  but  neither  the  rent  nor  the  <£  1,000 
was  paid,  but  after  some  years  the  builder  agreed  to  purchase 
the  mortgagee's  lien  and  balance  accounts.  Held,  the  builder 
should  not  have  interest  upon  the  rents,  but  the   account  of 

1  Johnson  v.  Rice,  8  Greenl.  137.  Gibson  v.  Crehore.  5  Pick.  146  ;  Powell 

2  Crce  V.  Lord,  25  Verm.  493.  v.  Williams,  14  Ala.  47(5.     See  Jenkins 

3  Wood  V.  Felton,  9  Pick.  171.  v.  Eldredge,  3  Storv,  325;  Hogan  v. 
*  Gordon  v.  Lewis,  2  Sumn.  143, 144 ;  Stone,  1  Ala.  N.  S.  496. 


424  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

principal  and  interest  should  not  be  carried  beyond  the  date 
of  the  decree  ;  and  that  interest  should  not  be  allowed  upon 
the  rents,  as  against  the  mortgagor.^ 

20.  Where  a  purchaser  of  the  land  mortgaged  is  made 
defendant  in  a  suit  on  the  mortgage ;  in  order  to  redeem,  he 
must  pay  the  sum  due  in  equity,  being  the  principal  and 
interest  of  the  debt,  deducting  any  payments  and  any  sums 
received  as  rents  and  profits.^  But  if  he  claims  that  the  sum 
due  is  uncertain  and  unliquidated,  and  that  he  offered  to  the 
plaintiff  a  certain  sum,  with  condition,  that  if  he  received  it, 
it  must  be  in  full  satisfaction,  and  that  the  money  was 
accepted  ;  in  order  to  show  that  the  sum  was  thus  unliqui- 
dated, he  may  prove  the  plaintiff  to  have  been  in  possession, 
and  liable  to  account  for  the  rents  and  profits.'^ 

21.  Compound  interest  is  not  to  be  allowed  between  mort- 
gagee and  mortgagor.^  But  it  is  held,  that  if  the  mortgagor 
have  allowed  compound  interest,  he  cannot  revoke  such 
allowance.*^ 

22.  Annual  rests  are  not  to  be  made  by  the  master,  to  whom 
a  mortgagee's  account  is  referred,  unless  he  is  specifically  so 
ordered  by  the  decree.  The  general  rule  is,  to  charge  the 
mortgagee  with  interest ;  1.  Where  the  mortgage  is  satisfied, 
and  a  considerable  balance  remains  in  his  hands  ;  2.  Where 
he  refuses  to  account ;  3.  Where  he  has  notice  of  a  subse- 
quent mortgage,  to  pay  which  he  is  requested  to  apply  the 
balance  in  his  hands.  In  other  cases  the  rule  is  —  to  cast 
the  debt  and  interest,  on  the  one  hand,  and  the  total  amount 
of  rents,  without  interest,  on  the  other  hand,  and  deduct  the 
one  from  the  other.^ 

22  a.  Where  interest  was  payable  semi-annually,  interest 
with  semi-annual  rests  was  computed  on  the  rents  and  profits 
received  by  the  mortgagee." 

1  rage  V.  Broom,  4  Russ.  C,  224.  ^  Booker  ?.'.  Gregory,  7  B.  Mon.  439. 

-  McDaniels   v.  Lapham,  21   Verm.  'J  2  CJnenl.  Cruise,  119,  n.;  Sliacti'cr 

222.  V.  Clianibcrs,  2  Ilalst.  Cli.  r)48. 

a  Ibid.  7  Gibson  v.  Crchorc,  5  Tick.  14G. 

*  Sec  Dunsbcc  ^.Tarmclcc,  19  Verm. 
172. 


CH.  XVI.]      EQUITY   OF  REDEMPTION.  —  TERMS   OF,  ETC.  425 

23.  Judge  Story  says :  ^  —  "  Courts  of  equity  will  not  ordi- 
narily require  annual  rests  to  be  made  in  settling  the  accounts ; 
as,  for  example,  they  will  not  require  annual  rests  to  be  made, 
where  the  interest  of  the  mortgage  is  in  arrears  at  the  time 
when  the  mortgagee  takes  possession,  even  although  the 
rents  and  profits  may  exceed  the  annual  interest,  nor  until 
the  principal  mortgage  debt  is  entirely  paid  off.  But  where 
special  circumstances  exist,  as  for  example  where  no  arrears 
of  interest  are  due  at  the  time  when  the  mortgagee  enters  into 
possession,  or  any  agreement  between  the  parties,  the  interest 
in  arrears  is  converted  into  principal,  there,  and  in  such  cases, 
annual  rests  shall  be  made." 

24.  A  mortgagee,  having  been  some  time  in  possession  and 
occupation  of  the  estate,  sold  and  conveyed  it,  and  the  pur- 
chaser entered  and  took  possession.  Held,  in  stating  an 
account  upon  a  bill  to  redeem,  it  was  incorrect  to  make  a 
rest  in  the  computation  of  interest  at  the  time  of  such  trans- 
fer, and  add  the  interest  then  due  to  the  principal.^ 

25.  The  interest  upon  a  mortgage  having  fallen  in  arrear, 
and  the  mortgagee  in  his  account  of  arrears  having  made 
periodical  rests,  on  which  interest  was  reckoned,  a  general 
account  was  made  of  all  arrears,  based  upon  those  rests, 
signed  by  the  mortgagor,  and  confirmed  by  a  trust  deed, 
executed  three  years  afterwards,  for  securing  payment  of  the 
balance  by  a  sale  of  the  property.  Upon  a  bill  in  equity  filed 
by  the  mortgagee,  and  praying  that  the  deed  might  be  carried 
into  execution  ;  it  was  held,  that  the  transactions  above  stated 
were  not  usurious,  and  a  decree  was  made  for  a  sale.^  Alder- 
son,  B.,  remarks:^ — "  What  evidence  is  there,  arising  out 
of  the  relative  situation  of  the  parties  as  mortgagor  and  mort- 
gagee, to  induce  the  conclusion  that  there  was  any  oppres- 
sion ?     There  is  not  enough  even  in  the  original  state  of  the 


1  2  Story's  Eq.    1016  a.;  Ace  Finch         -  Boston  Iron   Co.  v.  King,  2  Cush. 
V.  Brown,  3  Beav.  70 ;  Horlock  v.  Smith,     400. 

1  Coll.  287.  =*  Blackburn  i-.  Warwick,  2  Y.  &  Coll. 

92. 

*  lb.  p.  99. 

36* 


426  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

transactions,  but  more  especially  when  they  are  found  to  be 
based  upon  a  regular  agreement.  Then,  is  there  any  thing 
illegal  in  the  agreement  itself  ?  It  is  said,  that  if  parties 
enter  into  an  original  agreement  by  way  of  mortgage,  they 
cannot  recover  more  than  £5  per  cent,  beyond  the  principal 
money,  and  that  a  stipulation,  that  if  the  interest  is  not  paid 
at  the  time,  the  mortgagor  shall  pay  interest  upon  it  until  the 
arrears  are  paid,  that  is  illegal.  Now,  in  holding  this  to  be 
the  rule,  I  presume  the  courts  suppose  that  some  advantage 
immediately  accrues  to  the  mortgagee  under  the  deed,  ultra 
the  allowance  of  £5  per  cent.  I  do  not  see  why  such  interest 
might  not  be  allowed,  even  where  the  stipulation  to  pay  is 
contained  in  the  original  deed  ;  but  be  that  as  it  may,  there 
the  covenant  being  part  of  the  original  terms  of  the  contract, 
is  part  of  the  original  advantage  accruing  to  the  mortgagee, 
and  the  courts  will  not  sanction  such  a  contract.  So  neither 
will  the  courts  allow  interest  upon  interest,  where  the  party 
comes  to  an  account  with  his  debtor,  which  he  afterwards 
seeks  to  enforce  through  the  medium  of  a  court  of  equity.  In 
that  case,  it  is  considered,  that  where  parties  who  are  entitled  to 
the  repayment  of  a  principal  sum  with  simple  interest,  have 
neglected  to  enforce  payment  of  the  interest,  that  was  their 
own  omission,  and  the  Court  leaves  them  to  take  the  conse- 
quences of  that  neglect,  and  will  not  give  them  an  equity 
founded  upon  their  own  laches.  But  there  is  no  reason  why, 
if  the  parties  settle  the  matter  between  themselves,  and  the 
one  party  gives  time  to  the  other  for  payment  of  the  arrears 
in  consideration  of  the  allowance  of  interest  on  the  balance, 
they  should  not  afterwards  be  compelled  to  abide  by  that 
settlement." 

26.  Money  in  court,  at  the  time  when  the  mortgagee  en- 
tered, shall  be  applied  to  the  interest.^ 

27.  Upon  the  points,  whether  interest  is  recoverable  in  all 
cases  upon  a  mortgage,  and  to  what  amount,  it  is  said  ;  the 
rule,  that  interest  shall  not  be  recovered  upon  a  bond  beyond 

1  Ilorlock  V.  Siuitli,  1  Coll.  287. 


en.  XVI.]      EQUITY   OF   REDEMPTION.  —  TERMS   OF,   ETC.  427 

the  penalty,  does  not  apply  where  the  bond  is  secured  by 
mortgage,  even  though  the  mortgage  is  made  by  a  surety, 
subsequently  to  the  bond,  unless  it  be  expressly  as  security 
for  the  bond  debt,  and  the  interest  to  become  due  on  the 
bondJ 

28.  Interest  will  be  recovered  upon  a  mortgage,  as  dam- 
ages, where  it  is  expressly  provided  for  up  to  the  time  of 
payment  of  the  principal,  if  payment  is  not  made  on  that 
day.2 

29.  A  mortgage  was  conditioned,  that  on  payment  of 
^500  at  or  before  a  certain  time,  the  deed,  and  a  note  of 
even  date,  promising  to  pay  said  sum  at  that  time,  should 
be  void.  Held,  in  a  suit  for  redemption,  it  might  be  shown 
by  parol  evidence,  that  a  note  for  $500,  payable  on  demand 
ivith  interest,  was  the  one  secured  by  the  mortgage,  and  that, 
in  order  to  redeem,  the  plaintiff  must  pay  interest.  ^  The 
Court  say  :  *  —  "  There  is  little  danger  that  the  purchaser  of 
an  equity  could  be  deceived  respecting  the  amount  due  by  a 
statement  of  it  contained  in  the  mortgage,  in  cases  where 
a  note,  bond,  or  other  contract  is  referred  to  as  secured  by  it. 
He  would  in  such  cases  be  informed,  that  other  and  more 
certain  means  of  knowledge  existed,  and  of  the  source  to 
which  he  might  resort  for  more  exact  information.  When 
the  rule  is  once  established,  that  the  mortgage  debt  will  re- 
main secured  after  a  change  in  the  evidence  of  its  existence, 
it  becomes  apparent,  that  it  would  be  wholly  unsafe  to  rely 
in  any  case  upon  the  statement  of  the  amount  in  the  mort- 
gage. The  amount  to  be  paid  may  have  been  increased  by 
the  accumulation  of  interest,  by  costs  or  (of)  litigation,  and 
by  repairs  and  improvements,  made  upon  the  estate  by  a 
mortgagee  who  has  entered  into  possession." 

30.  It  is  said,  "  supposing  the  word  interest  to  be  omitted 
in  the  mortgage  deed,  it  is  conceived  the  estate  would  still 
be  liable  to  all  arrears ;  for  interest  is  to  be  viewed  not  merely 


1  Coote,  515.  -  Ibid.  516.  -  Bourne  r.  Littlcfield,  29  Maine,  302. 

*  Bourne  v.  Littlcfield,  29  Maine,  302.        See  Parker  v.  Parker,  17  Mass.  370. 


428  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

as  an  accident  to  the  principal,  but  in  fact  as  part  of  it,  in 
the  same  manner  as  fruit  is  part  of  a  tree.  3  Meri.  566. 
The  yearly  produce  is  to  be  considered  as  included  under  a 
general  loan  of  the  principal,  and  consequently  as  secured 
by  the  deed  which  secures  the  principal ;  besides,  the  pay- 
ment of  interest  is  a  prominent  object  in  the  mortgage  trans- 
action, and  will  in  all  cases  be  presumed,  unless  the  contrary 
be  expressed.     Farquhar  v.  Morris,  7  T.  R.  124."  ^ 

31.  The  question  of  interest  often  becomes  important, 
where  a  particular  tenant  and  a  reversioner  have  distinct 

# 

rights  in  the  mortgaged  estate,  and  the  interest  has  been 
allowed  to  accumulate. 

32.  In  Aston  v.  Aston, ^  the  owner  of  the  charge  let  it  run 
in  arrear  eight  years,  and  it  was  held,  that  this  circumstance 
alone  did  not  authorize  the  presumption,  either  that  the  inter- 
est was  absolutely  released,  or  that  such  neglect  to  demand 
it  was  intended  to  prejudice  the  remainder-man.  But  if 
there  be  any  connivance  or  unfair  conduct  between  the  par- 
ticular tenant  and  the  incumbrancer,  in  allowing  the  interest 
to  accumulate,  and  eventually  imposing  it  upon  the  remain- 
der-man, through  the  death  or  insolvency  of  the  particular 
tenant ;  such  proceeding  may  prejudice  the  claim  for  interest 
against  the  remainder-man.  Thus  in  Bentham  v.  Haincourt, 
(Prec.  Cha.  30,)  where  the  first  mortgagee  had  taken  posses- 
sion, but  allowed  the  mortgagor,  his  son-in-law,  to  receive 
the  rents,  and  the  interest  to  fall  in  arrear ;  it  was  held,  that 
a  second  mortgagee  should  have  the  same  rights  as  if  the 
interest  had  been  regularly  paid.  In  such  case,  the  first 
mortgagee  would  be  only  postponed,  not  whoUy  deprived  of 
his  interest ;  but  if  the  rents  were  insufficient  to  pay  it  and 
also  satisfy  the  second  mortgage,  he  might  wholly  lose  such 
interest  as  against  the  second  mortgagee,  though  not  per- 
haps the  mortgagor  and  his  licirs.'^ 

33.  In  Roc  V.  Pogson,*  Sir  Thomas  Plumer,  V.  C,  ex- 

1  Pow.  291,  n.  •'  L(l.  rciirliyn  v.  Hughes,  5  Ves.  106. 

-  1  Vcs.  264.     See  Earp,  &c.,  1  I'ars.        ■•  2  Madd.  457. 
(Perm.)  453. 


CH.  XVI.]      EQUITY   OF   REDEMPTION. — TERMS   OF,    ETC.  429 

pressed  the  opinion,  that  an  incumbrancer  will  be  entitled  to 
arrears  of  interest  as  against  a  remainder-man,  notwithstand- 
ing his  neglect  for  many  years  to  claim  interest  from  the 
tenant  for  life. 

34.  K  a  tenant  for  life  die,  leaving  arrears  of  interest,  his 
assets  will  be  answerable  therefor  to  the  next  remainder- 
man.' 

35.  A  mortgaged  estate,  in  possession  of  a  tenant  for  life, 
was  devised  in  strict  settlement.  The  mortgagee  permitted 
the  tenant  for  life  to  run  the  interest  in  arrear,  and  after- 
wards purchased  the  life-estate,  took  possession,  and  received 
the  rents  for  about  three  years,  when  the  tenant  for  life  died. 
Upon  a  bill  for  foreclosure  against  the  remainder-man,  the 
defendant  claimed  to  charge  the  plaintiff  with  the  arrears  of 
interest  due  at  the  time  of  his  purchase,  as  well  as  those 
accruing  subsequently  to  his  taking  possession.  Held,  if  the 
mortgagee  had  entered  as  such,  the  surplus  rents  must  have 
been  applied  in  discharge  of  the  arrears,  and  he  should  not 
be  permitted  to  prejudice  the  reversioner's  rights  by  entering 
as  a  purchaser.  Decreed,  that  an  account  be  taken  of  prin- 
cipal, interest,  and  costs,  and  of  the  rents  and  profits  received 
by  the  plaintiff,  which  should  be  applied,  first  to  the  subse- 
quent interest,  and  then  to  the  preceding  arrears.^ 

36.  In  the  case  of  Ivy  v.  Gilbert,^  a  term  was  created  for 
raising  portions  out  of  annual  profits.  Under  the  usual  proviso 
for  the  mortgagor's  possession,  the  tenant  for  life  continued 
to  occupy  and  receive  the  rents.  Held,  as  this  was  done  by 
permission  of  the  mortgagee,  the  effect  was  the  same  as  if 
he  had  let  the  estate,  and  he  should  therefore  account  for  the 
rents,  having  a  remedy  over  against  the  personal  representa- 
tives of  the  tenant  for  life. 

37.  With  regard  to  the  expenditures  of  the  mortgagee  in" 
the  care  and  management  of  the  estate  while  he  has  posses- 
sion, the  general  rule,  is,  that  the  mortgagee  shall  be  allowed 

1  1  Tow.  293  «,  n.  ^  2F.  Wms.  20. 

2  Penrhyn  v.  Hughes,  5  Ves.  Jr.  99. 


430  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

for  all  necessary  repairs,  even  though  they  exceed  the  rents 
and  profits,  but  not  for  any  which  have  not  increased  the 
value  of  the  premises.'  (/)  He  cannot,  in  general,  have  an 
allowance  for  making  any  thing  new.^  He  is  not  bound  to 
account  for  profits  arising  from  permanent  improvements 
made  by  him.^  It  is  said,  the  mortgagee  is  not  the  substan- 
tial owner  of  the  estate,  and  therefore  only  bound  to  make 
necessary  repairs.*  (g-)  "  If  it  were  otherwise,  a  mortgagee 
might  from  whim  or  caprice  make  what  he  considered  to  be 
improvements,  but  such  as  the  mortgagor  would  not  choose 
to  have  made.  A  mortgagor  might  be  in  a  situation  to  re- 
deem, by  paying  the  principal  and  interest  of  the  debt ;  but 
wholly  unable  to  redeem,  if  obliged  to  pay  also  for  such  im- 
provements as  the  mortgagee  might  be  able  and  think  proper 
to  erect.  Such  a  clog  upon  the  equity  of  redemption  would 
be  subject  to  great  abuses,  and  increase  the  difficulties  in  the 
way  of  the  right  to  redeem,  and  might  be  resorted  to  by  a 
mortgagee,  knowing  and  disposed  to  take  advantage  of  the 
necessities  of  the  mortgagor,  as  a  means  of  defeating  the 
equity  of  redemption."  ^  Upon  this  ground,  where  a  mort- 
gagee had  opened  and  worked  mines ;  it  was  held,  as  he  had, 
in  the  language  of  the  Court,  "  actually  sold  away  a  part  of 
the  inheritance,"  he  should  be  charged  with  his  receipts,  but 
disallowed  his  expenses.^ 

1  Gordon  w.  Lewis,  2  Sumn.  143;  Reed  *  Dougherty  v.  McColgan,  6  G.  &  J. 

V.  Reed,  10  Pic'lc.  398 ;  Lowndes  v.  Cliis-  275. 

holm,  2   McC.  Ch.  455;    M'Conncl  v.  ^  Per  Buchanan,  C.  J.,  Douoherty  r. 

Ilolobusli,  U  ill.  61.  McColgan,  6  Gill  &  J.  285,  286. 

-  Russell  V.  Blake,  2  Pick.  505.  «  Thorneycrof't  v.  Crockett,  16  Sim. 

•*  Bell  V.  Mayor,   &c.,   10  Paige,  49;  445. 
Hopkins  V.  Stephenson,  J.  J.  Marsh. 341 ; 
Ilagtiiorp  r.  Hook,  1  Gill  &  J.  270. 


(/)  He  may  charge  for  an  aqueduct,  the  amount  being  small,  anil  the 
aqueduct  necessary  to  furnish  water.     Saunders  v.  Frost,  5  Pick.  259. 

(fj)  Tlie  obligation  to  make  repairs,  and  the  right  to  chiim  an  allowance 
for  them  when  made,  are  usually  treated  as  equivalent  propositions;  the 
one  being  implied  in  the  other.  By  the  Civil  Law,  the  mortgagee  is  allowed 
for  improvements,  though  not  absolutely  necessary,  with  interest.  1  Dom. 
365. 


CH.  XVI.]      EQUITY   OF   REDEMPTION.  —  TERMS    OF,    ETC.  431 

38.  So,  it  is  said,  if  the  mortgagor  make  improvements, 
they  all  go  to  satisfy  the  mortgage.  On  the  same  principle, 
if  made  by  the  mortgagee,  they  are  made  for  his  own  bene- 
fit and  he  cannot  charge  the  mortgagor  with  their  cost,  [h) 
"  Volenti  non  fit  injuria.^''  There  is  a  distinction  between 
necessar3/«'epairs  and  highly  beneficial  improvements.^ 

1  Clark  r.  Smith,  Saxt.  122  ;  Quiiin  r.  Brittaiu,  1  Hoffm.  Ch.  353. 


{h)  The  law  of  Jixlurcs,  as  between  mortgagor  and  mortgagee,  furnishes 
an  illustration  of  the  same  general  principle.  It  has  been  formerly  ques- 
tioned, whether  _/7x/«r(?s  would  pass  by  a  mortgage  of  the  land,  without  beino- 
specially  named.  It  seems  to  be  now  settled,  however,  that  they  do  pass. 
Thus  the  mortgagee  may  have  a  bill  for  an  injunction  against  their  removal. 
And  the  mortgagor's  possession  is  not  deemed  fraudulent,  as  in  case  of  chat- 
tels. Quincy,  1  Atk.  477;  Amos,  188,  et  seq. ;  Union,  &c.  v.  Emerson,  15 
Mass.  159;  Robinson  v.  Preswick,  3  Edw.  246;  Longstaif  r.  Meagoe,  2  Ad. 
&  Ell.  167. 

The  question  has  also  arisen,  whether  either  mortgagor  or  mortgagee  maj- 
remove  erections  which  he  himself  has  made  upon  the  land.  It  has  been 
held  in  Massachusetts,  that  one  holding  land  subject  to  redemption  maj', 
even  after  a  decree  to  redeem,  remove  a  barn  and  blacksmith's  shop  erected 
by  him,  and  so  slightly  affixed  that  they  may  be  removed  with  but  little  dis- 
turbance of  the  soil.  But  in  the  same  State  it  has  been  since  decided,  that 
a  kettle,  set  by  the  owner  of  a  freehold,  who  afterwards  mortgages  such  free- 
hold, cannot  be  removed  by  him  or  taken  as  his  personal  property,  but 
passes  by  the  mortgage,  though  appurtenances  are  not  expressly  named. 
And  a  still  later  case  decides  the  same  general  principle,  with  regard  to 
additions  to  the  freehold  made  by  the  mortgagor  after  the  mortgage ;  and 
the  reason  for  the  distinction  between  such  a  case,  and  that  of  improve- 
ments made  by  a  tenant,  is  shown  to  consist  in  the  fact,  that  both  these  par- 
ties are  presumed  to  make  improvements  for  their  own  hencfit ;  which  object 
will  be  best  eifected,  by  treating  them  in  the  one  case  as  part  of  the  free- 
hold, and  in  the  other,  as  personal  property  removable  by  the  tenant.  The 
further  reason  was  suggested,  that  one  of  the  most  usual  purposes  of  mort- 
gaging, is  the  raising  of  money  to  be  expended  in  improvement  of  the  estate. 
In  New  Hampshire,  a  mortgagor  in  possession  is  a  trespasser,  if  lie  remove  a 
mill  which  he  has  himself  built,  or  any  thing  attached  to  it.  Taylor  v.  Town- 
send,  8  Mass.  411 ;  Union,  &c.  r.  Emerson,  15, 159  ;  Winslow  v.  Merchants,  &c., 
4  Met.  306  ;  Pettengill  v.  Evans,  5  N.  H.  54.  So  it  is  said,  in  Maine  :  "  Be- 
tween landlord  and  tenant,  many  things  are  regarded  as  pez'sonal,  which 


432  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

39.  In  the  cases  of  Dexter  v.  Arnold,^  and  Gordon  v. 
Lewis,-  Judge  Story  remarks,  that  there  is  no  universal  duty 
in  a  mortgagee  to  make  all  sorts  of  repairs  ;  but  he  is  bound 
to  make  such  as  are  reasonable  and  necessary  under  the  par- 
ticular ch'cumstances  of  each  case.  K  a  building  is  very  old 
and  dilapidated,  there  is  no  rule  requiring  him  to  incur  a 
greatly  disproportionate  expense  in  repairing;  and  he  cer- 
tainly is  not  bound  to  make  any  new  advances. 

40.  A  mortgagee  or  assignee  in  possession  is  not  allowed 
for  improvements  in  clearing  ivild  land,  but  only  for  nec- 
essary reparations,  &c.,  and  must  account  for  the  rents  and 
profits  received  by  him,  except  such  as  have  arisen  exclu- 
sively from  his  own  improvements.'^ 

41.  In  the  case  of  Dougherty  v.  McColgan,'^  the  property 
exceeded  in  value  the  sum  lent,  and  there  was  no  proof  that 
it  had  begun  to  decay,  or  that  the  houses  standing  upon  the 
premises  were  in  a  ruinous  state,  or  were  pulled  down  and 

1  2  Siimn.  125,  126.  ^  Moore  v.  Cable,  1  Johns.  Ch.  385. 

2  lb.  143.  *  6  Gill  &  J.  286. 


■would  be  considered  a  part  of  the  realty  in  an  absolute  conveyance  or  a  mort- 
gage. The  mortgagor  generally  looks  to  the  redemption  of  the  property, 
and  what  he  adds  to  it,  of  a  permanent  character,  is  for  his  own  benefit;  for 
it  is  but  collateral  to  the  debt.  The  case  is  different  with  a  tenant,  who 
cannot  be  considered  as  intending  to  incorporate  the  fixtures  which  he  erects 
with  the  freehold."  Per  Wells,  J.,  29  Maine,  116.  Upon  this  ground,  if  a 
mortgagor  of  a  mill,  after  making  the  mortgage,  put  into  it  a  sliingle  machine 
and  apparatus  attached  to  it;  this  becomes  part  of  the  freehold,  and  passes 
to  the  mortgagee  after  foreclosure.  Corliss  v.  !McLagin,  2D  Maine,  115.  An 
engine,  placed  in  a  saw-mill  by  a  mortgagee  in  possession,  is  not  a  fixture. 
Cope  V.  Romcyne,  4  McLean,  384. 

The  mortgagor  of  a  saw-mill,  driven  by  water,  converted  the  buildings 
into  paper-mills,  putting  in  proper  machinery  and  a  new  water-wheel.  The 
water-power  proving  insuOicicnt,  he  placed  a  steam-engine  in  the  cellar  of 
one  of  the  buildings  and  applied  the  power  directly  to  the  driving  wheel, 
thus  moving  it  precisely  as  the  water  would  do.  Held,  the  engine  did  not 
become  subject  to  the  mortgage,  but  might  be  removed.  Randolph  v. 
(Iwvnne,  3  Ilalst.  Ch.  88. 


en.  XVI.]      EQUITY    OF   REDEMPTION.  —  TERMS    OF,    ETC.  433 

new  ones  erected  as  a  substitute  therefor,  and  for  the  same 
purposes,  but  on  the  contrary  they  were  built  for  new  and 
different  purposes.  There  was  moreover  no  long-continued 
possession,  and  acts  of  ownership  by  the  mortgagee  and  ac- 
quiescence by  the  mortgagor,  without  claim  of  the  right  to 
redeem,  begetting  the  belief  on  the  part  of  the  mortgagee 
that  the  property  belonged  to  him.  Held,  the  mortgagee 
should  not  be  allowed  for  such  improvements. 

42.  In  the  case  of  a  mill,  if  the  mill  could  have  been  used 
with  the  machinery  as  it  was  when  the  mortgagee  took  pos- 
session ;  and  if  the  repairs  were  for  the  purpose  of  increasing 
its  speed,  or  enabling  it  to  do  more  work  than  it  had  formerly 
done  when  the  machinery  was  in  order,  so  as  to  enhance  the 
benefit  of  the  possession ;  then  no  allowance  is  to  be  made 
for  repairs.  Otherwise,  if  they  were  really  indispensable  to 
keep  the  mill  in  operation.^ 

43.  In  Givens  v.  McCalmont,^  Huston,  J.,  says: — "The 
books  are  full  of  cases,  as  to  what  allowances  for  expenses, 
repairs  and  lasting  improvements  shall  be  made  to  the  mort- 
gagee in  possession.  These  cases  do  not  exactly  agree ;  in 
some,  the  cost  of  beneficial  and  lasting  improvements  has 
been  added  to  the  debt ;  but  in  the  better  opinions  it  would 
seem,  the  allowance  has  been  confined  to  repairs.  In  sev- 
eral of  the  States  the  allowance  seems  to  be  confined  to 
repairs.  Everywhere  the  mortgagee  in  possession  is  charge- 
able for  waste,  and  in  England,  particularly,  for  timber  cut. 
There  every  part  of  every  tree  will  bring  cash.  In  a  country 
covered  with  timber,  which  cannot  be  sold,  and  must  be 
removed  before  any  person  can  make  any  use  of  the  land,  it 
would  seem  that  the  law  as  to  timber  must  be  othei*wise. 
In  this  State,  no  rule  which  vnW.  apply  to  every  tract  can  be 
laid  down.  In  some  parts  of  the  State,  it  would  be  difficult 
to  find  a  farm  in  which  a  mortgagee  in  possession  could  cut 
more  timber  than  was  necessary  to  be  used  on  the  farm, 
without  committing  waste ;  but  in  places  where  many  farms 

1  Clark  V.  Smith,  Saxt.  123.  2  4  -Watts,  463. 

VOL.  I.  37 


434  THE    LAW    OF    MORTGAGES.  [CH.    XVI. 

have  less  than  ten  acres  in  the  hundred  cleared,  it  is  not 
waste  to  clear  land,  though  in  doing  so  the  timber  is  collected 
in  heaps  and  burnt.  The  situation  and  circumstances  of 
each  case  must  then  be  taken  into  view."  Upon  these 
principles,  the  Court  held,  in  that  case,  that  if  the  defendant 
had  used  the  land  cleared  and  the  mill  built  by  him  so  long 
as  to  pay  the  expenses  of  building  the  dam  and  mill ;  he 
should  be  charged  for  the  rent  even  of  his  own  improvements, 
from  the  time  when  he  was  paid  the  expense  of  them ;  with 
the  rent  of  the  farm  in  the  state  it  was  in  when  he  entered, 
from  that  time  ;  and,  if  the  clearing  of  the  land  was  an 
injury  to  the  farm,  he  should  be  charged  for  waste,  —  other- 
wise not. 

44.  It  is  said,  the  rule  refusing  the  allowance  of  lasting 
improvements  in  building  has  been  subjected  to  some  ex- 
ceptions in  special  cases.' 

45.  Thus  where  the  mortgagee  makes  such  improvements, 
supposing  himself  to  be  the  absolute  owner.^  So,  where  the 
owner  of  the  equity  of  redemption  stands  by  in  silence  and 
sees  improvements  made  by  a  purchaser,  he  cannot  redeem 
without  paying  for  them.^  But  only  the  cost  of  improve- 
ments is  allowed,  not  their  present  value.^ 

45  a.  Improvements  made  by  a  wrongful  occupant  enure 
to  the  benefit  of  the  mortgagor,  and  the  mortgagee  in  pos- 
session is  chargeable  for  rents  received  by  reason  of  them.^ 

45  b.  If  a  purchaser  from  the  mortgagor  make  improve- 
ments, the  mortgagee  in  possession  can  retain  only  such  a 
rent  as  the  land  would  be  worth  without  the  improvements.^ 

46.  The  Court  in  Maryland  remark  :  — "  The  grounds  of 
these  decisions  appear  to  bo,  that  a  mortgagee  in  possession 
is  the  legal  holder  of  the  estate,  which  the  mortgagor  may 
at  any  time  redeem,  and  so  prevent  him  from  making  any 
repairs  or  improvements  ;  and  if  the  mortgagee  has  been 

1  2  Groenl.  Cruise,  118,  n.  3  BraiUey  v.  Snyder,  14  111.  213. 

'^  Ncalc  V.  Ilat^nliorp,  :^   lilaiid,  5!)0 ;  •»  llogan  v.  Stone,  1  Ala.  U.  S.  496. 

McConncl  v.   IloloLiusli,    11     111.    61;  ^  jvierriam  i;.  Barton,  4  Verm.  501. 

Ilagthorp  V.  Hook,  1  Gill  &  J.  470.  «  Stoncy  v.  Shultz,  1  Hill,  Ch.  464. 


en.  XVI.]      EQUITY   OF   REDEMPTION. — TERMS    OF.  ETC.  485 

long  in  possession  claiming  adversely,  and  suffered  to  treat 
the  estate  as  his  own,  and  the  mortgagor  stands  by  and  per- 
mits lasting  improvements  to  be  made  ;  he  shall  pay  for 
them."  1 

47.  In  the  case  of  Cazenove  v.  Cutler,^  Shaw,  C.  J.,  re- 
marks upon  this  subject  as  follows :  —  "As  it  is  often  a 
question  of  difficulty,  what  expenses  shall  be  incurred  for  the 
benefit,  protection  and  preservation  of  the  mortgaged  prop- 
erty, in  which  both  the  mortgagor  and  mortgagee  have  an 
interest,  if  the  mortgagee  in  possession,  and  the  mortgagor 
or  his  assignee,  having  the  immediate  right  to  redeem,  con- 
sent and  agree  to  any  particular  measures  in  this  respect, 
and  the  expenses  attending  them,  such  consent  being  given 
with  a  knowledge  or  the  means  of  knowledge,  of  the  facts 
and  circumstances ;  the  expenses  thus  incurred  must  be  re- 
imbursed by  the  mortgagor  or  his  assignee  holding  the  equity, 
on  redemption.  Such  expense  must  be  considered,  in  point 
of  law,  a  reasonable  and  necessary  expense." 

48.  Where  the  items  of  repairs  charged  by  a  mortgagee 
were  as  follows  :  making  new  wall,  rebuilding  old  wall, 
mowing  bushes,  door  and  casing,  repairing  windows,  handle 
on  front  door,  papering  and  whitewashing  four  rooms,  fire- 
frame,  setting  the  same,  bricks  and  laying  two  hearths,  re- 
pairs on  barn,  carting  off  small  stones,  rails,  posts,  digging 
stone  for  wall;  the  Court  remarked,  that  looking  merely  at 
the  report  of  the  master  to  whom  the  case  had  been  referred, 
it  might  be  doubted  whether  some  of  these  items  could  be 
termed  necessary  repairs,  but  fhat  the  question  was  one 
peculiarly  fit  for  the  master,  and  every  reasonable  presump- 
tion ought  to  be  made  in  favor  of  his  decision,  inasmuch  as 
evidence,  not  appearing  in  the  report,  was  probably  submit- 
ted to  him,  which  showed  these  repairs  to  be  necessary.^ 

49.  So  it  has  been  since  held,  that  the  report  of  a  master, 

1  Per  Bland,  Chr.,  Neale  v.  Haglhorp,  2  4  Met  251 . 

3  Bland,  590,  591.  8  Kecd  v.  Eced,  10  Tick.  398. 


436  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

as  to  the  allowance  to  a  mortgagee  for  repairs  and  improve- 
ments, is  conclusive,  unless  a  mistake  clearly  appears.^ 

50.  A  master  in  chancery,  to  whom  it  was  referred  to  state 
an  account  between  mortgagee  and  mortgagor,  upon  a  bill 
to  redeem,  reported  that  certain  repairs  and  improvements 
made  by  the  former  were,  in  the  opinion  of  the  niaster,  nec- 
essary and  permanent,  and  that  he  had  allowed  therefor  such 
a  sum  as  they  would  have  cost  a  judicious  and  experienced 
farmer,  but  did  not  report  the  evidence.  Held,  the  principle 
adopted  was  substantially  correct,  and  it  should  be  presumed 
that  the  items  of  the  allowance  were  supported  by  the  evi- 
dence.^ 

51.  In  Godfrey  v.  Watson,^  Lord  Hardwicke  said,  that  a 
mortgagee  in  possession  was  not  obliged  to  lay  out  money 
any  further  than  to  keep  the  estate  in  necessary  repair ;  but 
if  he  had  expended  money  in  sitpportin<f  the  title  of  the  mort- 
gagor when  it  had  been  impeached,  he  would  allow  it. 

52.  So,  a  mortgagee  in  possession  will  be  allowed  for  the 
expenses  of  foreclosing,  or  advances  of  money  for  fines  on 
the  renewal  of  leases  under  which  the  premises  were  held,  or 
the  expense  of  defending  the  mortgagor's  title,  when  im- 
peached.* 

53.  The  mortgagee  may,  but  is  not  obliged  to  discharge 
prior  incumbrances.  He  will  be  allowed  in  his  account  all 
payments  made  for  this  purpose,^- 

54.  Mortgagees  filed  a  bill  to  separate  their  interest  from 
that  of  the  mortgagor,  after  the  levy  of  an  execution  against 
him  upon  the  land.  Held,  fhey  should  not  be  allowed  from 
the  fund  reasonable  solicitor's  fees.^ 

54  a.  If  a  mortgagee,  not  expressly  authorized  to  effect 
insurance  at  the  mortgagor's  expense,  nor  entitled  to  require 

1  Adams  v.  Brown,   S.J.   C.   Mass.  ^  2  Grcenl.  Cruise,  118,  n. ;  Marine, 

Mar.    1851;  I^aw   Kep.  May,   1851,    p.  &c.  r.  liia\  s,  4  II.  &  J.  343;  Arnold  y. 

38 ;  7  Cush.  220.  Foot,  7   15.   Mon.  66 ;   Page  v.  Foster, 

'^  Bo.ston  Iron  Co.  v.  King,  2  Cush.  7  N.  II.  392.     See   Lyman  v.  Little, 

400.  15  Venn.  576. 

8  3  Atk.  517.  «  Ilarbiuson  v.  IlarrcU,  19  Ala.  753. 

*  Clark  V.  Smith,  Saxt.  122. 


en.  XVI.]      EQUITY    OF   REDEMPTION.  —  TERMS   OF,  ETC.  437 

the  latter  to  insure,  docs  effect  insurance  without  the  privity 
of  the  mortgagor ;  he  will  not,  as  a  matter  of  course,  be 
allowed  to  charge  the  premiums  in  his  account.^  But  it  is 
otherwise,  where  he  effects  insurance  at  the  request  of  the 
mortgagor,  and  pays  the  premium.^  So,  if  a  mortgagee  in 
possession  for  breach  of  condition  insure  his  interest,  without 
any  agreement  therefor  with  the  mortgagor;  in  case  of  a 
loss,  which  is  paid  to  the  mortgagee,  the  mortgagor,  upon  a 
bill  to  redeem  and  an  account  stated,  cannot  claim  a 
deduction  of  this  amount  from  the  mortgagee's  charges  for 
repairs.^ 

55.  The  mortgagee  will  be  allowed  for  taxes,  the  payment 
of  which  is  necessary  to  protect  the  estate.^  (t)  Upon  fore- 
closure, in  New  York,  taxes  may  be  added  to  the  debt ;  and 
any  deficiency  after  such  addition  recovered  by  him.     So  the 

1  Dobson    V.    Land,    U    Jur.    288;  ^  ]viix  y.  Hotchkiss,  14  Conn.  32. 

Clark    V.   Smith.    Saxt.    122;    King  v.  "  White  v.  Brown,  2  Cush.  412. 

The  State,  &c.  7   Cush.  8;  Dobson  v.  *  Mix   v.   Hotchkiss,    14    Conn.   32; 

Land,  8  Hare,  216  ;  13  Law  Rep.  247  ;  Clark  v.  Smith,  Saxt.  122. 
Faure  v.  Winans,   Hopk.  283;  Saund- 
ers V.  Frost,  5  Pick.  259. 

(i)  By  Stat.  8  &  9  Vict.  c.  56,  an  incumbrancer  in  possession  may  obtain 
authority  from  Court,  to  improve  by  draining,  &c.,  the  cost  to  be  charged 
upon  the  land,  and  paid  by  instalments,  with  interest.  Among  the  ex- 
penses for  which  allowance  may  be  made,  have  been  mentioned  costs  of 
suit,  fees  paid  for  legal  opinions  necessary  in  the  execution  of  the  trust, 
paving  contributions  and  ground-rent.  Neale  v.  Hagthorp,  3  Bland,  590. 
Where  a  first  mortgagee. held  as  security  for  his  claim  certain  chattels  as- 
signed to  him  and  others,  some  of  which  were  attached  and  taken  from  him 
by  other  creditors  ;  and  he  thereupon  brought  an  action,  in  good  faith,  and 
for  the  benefit  of  the  assignees,  for  such  taking,  but  did  not  prevail ;  held, 
he  might  claim  the  expenses  of  such  suit,  as  part  of  the  mortgage  debt. 
Pettibone  v.  Stevens,  15  Conn.  19.  In  Massachusetts,  (St.  1848,  c.  166,  ss. 
1,  2,)  if  any  mortgagee  of  real  estate,  residing  in  the  city  or  town  where  it 
lies,  notifies  the  clerk  in  writing,  before  the  assessment  of  a  tax,  that  he 
holds  such  mortgage,  describing  the  property ;  the  collector,  before  selling, 
shall  demand  payment  from  him,  according  to  sec.  18,  c.  8,  of  the  Revised 
Statutes.  And  if  a  non-resident  mortgagee  shall  appoint  an  attorney,  agree- 
ably to  the  20th  section  of  said  chapter,  the  demand  shall  be  made  upon  the 
attorney. 

37* 


488  THE  LAW   OF   MOETGAGES.  [cH.  XVI. 

mortgagor  will  remain  liable  for  it,  even  after  a  new  bond 
and  mortgage  from  a  purchaser  of  the  estate.^ 

56.  Where  the  mortgagee  has,  in  pursuance  of  his  author- 
ity, made  sale  of  any  part  of  the  estate,  the  proceeds  of  sale 
will  of  course  be  deducted  from  the  sum  to  be  paid  for  re- 
demption of  the  remainder. 

57.  Mortgage,  by  separate  instruments,  made  at  the  same 
time,  by  and  to  the  same  parties,  of  real  and  personal  prop- 
erty, to  secure  one  debt.  The  mortgage  of  personal  property 
provided,  that  if  the  mortgagee  should  take  possession  for 
breach  of  condition,  he  or  his  assignee  might  sell  the  prop- 
erty at  auction,  and  with  the  proceeds  pay  the  expenses  and 
the  debt.  The  mortgagee  afterwards  assigned  both  mort- 
gages to  one  person,  and  the  right  in  equity  to  redeem  the 
mortgage  of  the  real  estate  was  attached  and  sold  on  execu- 
tion. The  assignee  afterwards  took  and  sold  the  personal 
property.  In  a  bill  brought  against  him  by  the  execution 
purchaser  to  redeem  ;  held,  if  the  sale  of  the  personal  prop- 
erty was  a  fair  one,  the  actual  proceeds,  or  if  not,  the  amount 
for  which  it  might  have  been  sold  at  auction,  should  be  de- 
ducted from  the  sum  due  on  the  mortgage.^ 

58.  The  mortgagee  having  had  the  possession  and  use  of 
both  the  real  and  personal  property,  and  made  sale  of  the 
latter,  as  above  stated,  and  applied  the  proceeds  to  the  debt ; 
held,  in  stating  an  account  in  this  suit,  the  rent  of  the  prem- 
ises might  embrace  the  use  and  occupation  of  both  the  real 
and  personal  property  for  the  whole  time;  provided  there 
were  no  charge  of  interest  on  the  proceeds  of  the  personal 
estate  from  the  time  of  the  sale.'"^ 

59.  Questions  relating  to  an  account  of  the  rents  and  profits 
arise  not  only  between  a  first  mortgagee  and  the  mortgagor, 
but  also  between  the  mortgagee  and  creditors  of  the  mort- 
gagor, first  and  second  mortgagees,  or  a  second  mortgagee 
and  the  mortgagor.^ 

1  Ea^lc,  &c.  V.  Pell,  2  Edw.  Ch.  631 ;         '^  Ibid. 

ace.  Williams  v.  Hilton,  3.5  Maine,  547.        ''  See  Lewis  v.  DeForest,  20  Conn. 

2  White  V.  Brown,  2  Cusb.  412.  427. 


CH.  XVI-]      EQUITY   OF   REDEMPTION. TERMS    OF,  ETC.  439 

60.  A  second  mortgagee,  after  satisfaction  of  the  first 
mortgage,  may  claim  from  the  first  mortgagee,  after  notice, 
the  rents  and  profits  which  have  not  been  accounted  for  to 
the  mortgagor,  so  far  as  the  same  are  necessary  to  the  satis- 
faction of  his  mortgage  J 

61.  A  second  mortgagee,  who  purchases  and  takes  an 
assignment  of  the  first  mortgage,  and  with  the  mortgagor's 
consent  sells  a  part  of  the  mortgaged  property,  and  wood 
growing  upon  another  part,  may  apply  the  proceeds  of  sale, 
as  against  one  claiming  under  the  mortgagor,  to  the  fij-st 
mortgage,  unless  the  mortgagor  requests  him,  at  the  time  of 
receiving  them,  to  apply  them  to  the  second  mortgage.^ 

61  a.  Mortgage  to  the  defendant ;  a  second  to  one  A.,  and 
a  third  to  A.  and  the  two  plaintiffs.  A.  assigns  his  interest 
in  the  two  last  mortgages  to  the  defendant,  who  enters  for 
non-payment  of  interest  on  the  first  mortgage.  The  plain- 
tiffs bring  a  bill  to  redeem  the  two  first  mortgages.  Held, 
the  defendant  could  not  apply  the  rents,  &c.  to  the  third 
mortgage,  having  entered  only  for  breach  of  condition  of  the 
first.-5 

62.  It  has  been  held,  that  if  the  mortgagee  either  enters  on 
the  land,  but  allows  the  mortgagor  to  take  the  profits,  or 
permits  him  to  use  the  mortgage  for  keeping  off"  other  credi- 
tors, he  will  be  held  accountable  for  the  profits.*  But  if  a 
first  mortgagee  enter  conformably  to  the  statute,  for  breach 
of  condition,  but  permit  the  mortgagor  to  retain  possession, 
without  accounting  for  the  rents  and  profits,  he  does  not 
thereby  himself  become  liable  to  account  for  them  with  a 
second  mortgagee ;  even  though  he  entered  in  order  to  pre- 
vent an  attachment  of  the  crops  by  the  mortgagor's  credit- 
ors.5  Dewey,  J.,  remarks  :  —  "  The  language  of  the  Revised 
Statutes,  c.  107,  requiring  the  mortgagee  to  account  for  rents 
and  profits,  would  seem  to  embrace  cases  only  of  actual  pos- 
session ;  and  in  the  case  of  a  mortgagor  permitted  by  the 

1  Gorilon  v.  Lewis,  2  Sumn.  143.  *  Coppring  v.   Cooke,  1  Vern.  270; 

-  Parker  v.  Green,  8  Met.  137.  Chapman  I'.^Tanner,  lb.  267. 

3  Saunders  v.  Frost,  5  Tick.  259.  &  Charles  v.  Dunbar,  4  Met.  498. 


440  THE   LAW   OF  MORTGAGES.  [CH.  XVI. 

mortgagee  to  continue  in  possession,  and  to  take  the  profits, 
after  a  formal  entry  by  the  mortgagee,  equity  would  clearly 
forbid  that  the  mortgagee  should  be  held  to  account  for 
them  with  the  mortgagor.  Does  the  law  require  a  different 
rule  when  applied  to  the  case  of  one  holding  as  a  second 
mortgagee  ?  Where  one  who  has  made  two  mortgages  is 
left  in  possession  by  both  the  first  and  second  mortgagee, 
and  takes  the  rents  and  profits  without  disturbance  from  the 
second  mortgagee,  clearly  so  long  as  no  formal  entry  for 
condition  broken  is  made,  the  first  mortgagee  is  not  liable  to 
account  in  favor  of  the  second.  This  being  so, —  a  mere 
formal  entry,  avow^edly,  to  foreclose,  —  but  in  fact,  leaving 
the  mortgagor  in  possession  and  enjoying  the  profits,  will 
not  of  itself  charge  the  first  mortgagee  to  account  with  the 
second.  The  second  mortgagee  may  take  the  possession,  as 
against  that  of  the  mortgagor,  if  the  latter  holds  in  his  own 
right,  and  thus  exclude  him  and  take  the  rents  and  profits  to 
his  own  use.  If  such  second  mortgagee  should  be  prevented 
from  making  such  entry,  by  the  previous  entiy  and  actual 
occupation  of  the  first  mortgagee,  or  by  his  claiming  to  ex- 
clude the  second  mortgagee  by  virtue  of  the  superior  title 
conferred  by  the  first  mortgage  and  the  occupation  under  it ; 
then  he  would  be  held  to  account,  in  favor  of  the  second 
mortgagee,  for  the  rents  and  profits."  He  proceeds  to  re- 
mark,.that  the  second  mortgagee  might  protect  himself,  by 
paying  the  first  mortgage,  and  himself  taking  control  of  the 
premises ;  that  the  first  mortgagee  is  not  estopped  by  his 
mere  entry,  from  denying  that  he  received  the  rents,  &c., 
because  his  possession  might  be  afterwards  abandoned  with- 
out fraud ;  and  that  he  could  not,  by  reason  of  such  entry, 
be  treated  as  one  who  by  his  conduct  induced  another  to 
part  with  his  property,  or  forego  the  enforcement  of  his 
rights.  "  Nor  do  we  think  that  the  purpose  of  the  formal 
entry,  namely,  to  aid  the  mortgagor  in  withholding  from  the 
attachment  of  other  creditors  the  produce  of  the  farm,  aflects 
the  present  question.     If  the  possession  was  not  in  fact  in 


CII.  XVI.]      EQUITY   OF  REDEMPTION.  —  TERMS    OF,  ETC.  441 

the  mortgagee,  the  creditors  might  have  made  valid  attach- 
ments of  the  produce  of  the  farm.  They  did  not  interfere, 
however,  and  we  think  the  purpose  of  the  first  mortgagee's 
entry,  does  not  enlarge  the  rights  of  the  second." 

62  a.  Where  a  mortgagee  has  possession  of  only  part  of 
the  premises,  a  subsequent  incumbrancer  cannot  charge  him 
as  in  possession  of  the  whole.^ 

63.  A  mortgagor  may  assign  the  surplus  rents  received  by 
the  mortgagee  after  satisfaction  of  the  debt ;  and  the  as- 
signee may  maintain  a  bill  in  equity  for  an  account.-  (j) 

64.  Where  the  land  mortgaged  is  probably  insufficient 
security  for  the  debt,  and  the  party  personally  liable  is  in- 
solvent ;  after  the  debt  is  due,  the  mortgagee  may  have  a 
receiver  appointed  by  the  Court.^  [k)  There  must,  it  is  said, 
be  fraud  or  imminent  danger,  to  justify  this  proceeding  ;  * 
and  the  bill  or  petition  must  set  forth  insolvency  or  danger 
of  loss ;  not  merely  the  complainant's  title,  and  that  the  other 
party  has  entered  wrongfully.^  Thus,  upon  a  bill  by  a  mort- 
gagee, before  default,  to  stay  waste,  but  not  requiring  a  sale, 

1  Soar  u.  Dalbey,  15  Eng.  L.  &  Eq.  r.  Curtis,  1   Gratt.  289 ;   Best  v.  Scher- 

124.  mier,  2  Halst.  1  Ch.  154. 

-  Gordon  v.  Lewis,  2  Sumn.  143.  *  Thompson  v.  Diftendufer,!  Md.  Ch. 

•^  Astor   V.    Turner,    11    Paige,   430.-  489. 

See  Jones  v.  Smith,  1  Hare,  43  ;  Clark  ^  Clark  v.  Ridgley,  lb.  70. 


(y)  The  mortgagor  may  sometimes  be  held  accountable  for  the  rents  and 
profits  received  by  him.  Thus  the  purchaser  of  an  equity  of  redemption, 
•where  the  mortgagee  has  not  made  an  entry,  may  maintain  trespass  ^u.  cl. 
freg.  against  the  mortgagor  in  possession  for  the  rents  and  profits,  -without  a 
previous  entry.  Fox  v.  Hiding,  8  Shepl.  104.  A  purchaser  from  the 
mortgagor  cannot  claim  to  have  the  value  of  the  improvements  made  by  him 
deducted  from  the  proceeds  of  a  sale  of  the  land.  If  the  value  has  been 
thereby  increased,  he  may  have  the  benefit  of  it  by  paying  the  debt,  or  in 
the  increased  price  of  the  land.  On  the  other  hand,  if  the  lancl  has  depre- 
ciated, so  as  to  bring  less  than  the  debt,  the  mortgagee  bears  the  loss. 
Hughes  V.  Edwards,  9  Wheat.  489. 

(k)  And  in  such  case  the  owner  of  the  equity  may  be  charged  with  an 
occujiation  rent.     11  Paige,  43*. 


442  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

a  receiver  cannot  be  appointed.^  So,  a  receiver  will  not  be 
appointed  against  a  mortgagee  in  possession,  at  the  suit  of 
a  creditor  of  the  mortgagor,  so  long  as  the  mortgagee  will 
swear  there  is  a  balance  due  him,  though  the  fact  is  con- 
tested, if  he  is  able  to  respond  for  what  he  may  receive.^ 
A  receiver  is  an  indifferent  person  appointed  by  the  Court  of 
Chancery  to  receive  the  rents  and  profits  of  land  or  other 
thing  in  question,  pending  a  suit,  where  it  does  not  seem 
reasonable  to  the  Court  that  the  parties  themselves  should 
be  in  receipt  of  the  rents.  The  power  of  appointing  a  re- 
ceiver is  a  discretionary  one,  and  does  not  affect  the  rights 
of  the  parties.  The  appointment  is  made  by  the  master,  on 
motion  to  the  Court.  The  master  ascertains  the  incum- 
brances and  their  priorities,  and  the  receiver  is  directed,  from 
the  rents  and  annual  proceeds  to  pay  the  interest  accordingly, 
and  the  balances  into  the  bank.  A  receiver  is  never  ap- 
pointed, but  in  case  of  idiots  and  lunatics,  except  in  connec- 
tion with  a  pending  suit.^  A  receiver  is  an  officer  of  the 
Court,  but  his  appointment  determines  no  right,  nor  does  it 
affect  the  title  of  the  property.  It  will  not  prevent  the  running 
of  the  statute  of  limitations.  His  holding  is  the  holding  of 
the  Court,  for  him  from  whom  the  possession  was  taken. 
He  is  appointed  on  behalf  of  all  parties,  and,  if  any  loss 
arises  from  deficiency  in  his  accounts,  the  estate  must  bear 
it^  The  effect  of  his  appointment  is  not  to  oust  any  party 
of  his  right  to  the  possession  of  the  property,  but  merely  to 
retain  it  for  the  benefit  of  the  party  ultimately  entitled  ;  and, 
when  such  party  has  been  ascertained,  the  receiver  will  be 
considered  as  his  receiver.^ 

65.  If  the  property  is  so  situated  th|it  it  would  require  a 
bailiff"  or  receiver  in  case  it  were  his  own,  the  mortgagee  may 
appoint  one  without  authority  of  the  mortgagor.*^  But  he 
cannot  in^such  case,  have  a  receiver  appointed  by  the  Court, 

1  Robinson  v.  Prcswick,  3  Edw.  Ch.  *  Ellicott  v.  The  United  States,  &c. 

246.  7  Gill,  307. 

-  Quinn  v.  Brittain,  3  Edw.  Ch.  314.  ^  Ibid. 

»  1  I'ow.  294  a.  n.  "  C«ote,  404. 


CH.  XVI.]        EQUITY    OF   REDEMPTION.  —  TEEMS    OF,    ETC.  443 

nor  appoint  himself  receiver,  even  though  expressly  agreed.^ 
Thus  in  LangstafFe  v.  Fenwick,^  an  account  was  opened, 
because  the  mortgagee  had  taken  a  poundage  as  receiver. 

66.  In  Scott  V.  Brest,^  a  mortgage  recited,  that  for  better 
securing  the  mortgage-money,  it  had  been  agreed  that  the 
mortgagee  should  be  receiver  of  the  rents,  with  a  salary  of 
<£40  a  year,  by  way  of  commission-money  for  his  trouble  and 
loss  of  time.  Held,  this  was  a  usurious  provision.  But  it 
was  admitted,  that  the  mortgagee  might  lawfully  be  appointed 
receiver,  and,  if  the  rents  had  been  received  merely  in  that 
character,  the  transaction  would  have  been  perfectly  innocent. 
To  constitute  usury,  there  must  be  a  usurious  taking. 

67.  In  Carew  v.  Johnston,^  it  was  said  by  Lord  Redesdale, 
that  for  the  mortgagee  to  charge  receiver's  fees  for  himself, 
was  fraudulently  eiToneous,  and  taking  an  unlawful  advan- 
tage. 

68.  Where  no  provision  is  made  to  give  the  mortgagee  a 
lien  on  the  rents  and  profits,  and  the  property  is  insufficient 
security  for  the  debt,  and  the  mortgagor  or  other  person  in 
possession,  who  is  personally  Liable,  is  insolvent ;  equity  will 
appoint  a  receiver  before  a  decree  of  foreclosure.-^  But  not 
where  the  property  is  merely  insufficient  security  for  all 
incumbrances  upon  it,  unless  alleged  to  be  insufficient  for  the 
particular  debt  of  the  plaintiflf  himself.^  The  mortgage  must 
be  due.  If  payable  by  instalments,  and  if  the  property  can- 
not be  sold  in  separate  parcels,  so  as  to  satisfy  an  instalment 
which  is  due  ;  the  mortgagee  may  foreclose  the  whole,  and 
has  an  equitable  claim  to  the  rents  and  profits,  upon  fifing 
his  bill,  and  may  have  a  receiver  appointed." 

68  a.  Where  a.  mortgagor  becomes  bankrupt,  and  a  defi- 
ciency of  his  property  is  apprehended,  and  a  prior  mortgagee 
obtains  the  appointment  of  a  receiver  to  coUect  the  rents ; 


1  Coote,  404.  5  "Warner  v.  Goaverneur,  1  Barb.  36. 

'■2  10  Ves.  40.5.  6  Ibid. 

3  2  T.  R.  241.  -  Quincv    v.    Cheeseman,   4   Sandf. 

*  2  Sch.  &  L.  301 ;  French  v.  Baron,     Ch.  405. 
2  Atk.  120. 


444  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

such  mortgagee  acquires  a  lien  upon  the  rents,  and  on  motion 
they  can  be  applied  to  the  mortgage.' 

68  h.  A  foreclosure  bill  was  filed  by  a  testator,  in  which 
two  successive  motions  for  a  receiver  were  refused,  one  of 
them  with  costs.  The  testator  died.  His  executors  did  not 
revive,  but  filed  a  new  foreclosure  bill,  without  having  paid 
the  costs  of  the  refused  motion.  Held,  they  were  at  liberty 
to  do  so,  but  that  it  was  not  a  course  to  be  encouraged.^ 

68  c.  A  receiver  against  a  mortgagee  in  possession,  was 
granted  after  decree  on  application  of  another  mortgagee,  a 
co-defendant.^  But  it  has  been  held,  that  a  receiver  will  not 
be  appointed  against  a  first  mortgagee  in  possession,  on 
application  of  a  second  mortgagee,  though  the  first  mortgage 
is  disputed,  unless  it  be  shown  that  the  first  mortgagee  will 
be  unable  to  respond  for  the  rents.* 

68  d.  A  third  mortgagee  took  possession,  and  then  bought 
the  first  mortgage,  retained  possession  many  years,  and 
received  a  considerable  sum.  The  second  mortgagee  applied 
for  a  receiver.  The  affidavit  of  the  third  mortgagee  not 
satisfactorily  showing  that  any  thing  remained  due  on  the 
first  mortgage,  a  receiver  was  ordered.^ 

69.  If  a  mortgagee,  though  unable  to  state  with  much  pre- 
cision, how  much  is  due,  makes  oath  that  he  believes  a  certain 
sum  is  due,  and  that  the  mortgage  is  unsatisfied,  the  Court 
will  not  take  the  possession  from  him.  Otherwise,  where  he 
cannot  say  a  shilling  is  due.^ 

70.  In  Berney  v.  Sewell,^  the  Lord  Chancellor  said,  he 
knew  of  no  instance  where  the  Court  had  appointed  a  receiver 
against  a  mortgagee  in  possession,  unless  the  parties  making 
the  appHcation  would  pay  him  off  according  to  his  claim,  as 
stated  by  himself;  that  if  a  man  has  a  legal  mortgage,  he 
cannot  have  a  receiver  appointed  ;  he  has  nothing  to  do  but 


1  Post  V.  Dorr,  4  Edw.  Ch.  412.  *  Trenton,  &c.  v.  "Woodruff,  2  Green, 

-  Long  V.  Storic,  10  Eng.  Law  &  Eq.  Cli.  210. 
182.  Mliid. 

•'  Ililcs  V.  Moore,  10  Eng.Law  &  Eq.        «  Ciuiirrcll  v.  Bcckford,  13  Vcs.  377, 
130.  ^  1  Jac.  &  W.  647. 


CH.  XVI.]        EQUITY   OF   REDEMPTIOX. —  TERMS    OF,    ETC.  445 

to  take  possession.  If  he  has  only  an  equitable  mortgage, 
and  the  prior  mortgagee  is  not  in  possession,  the  second 
mortgagee  may  have  a  receiver  without  prejudice  to  his 
taking  possession  ;  but  if  he  is  in  possession,  the  second 
mortgagee  must  redeem ;  and  then,  in  taking  the  accounts, 
the  first  will  not  be  allowed  any  sums  paid  over  to  the  mort- 
gagor after  notice  of  the  second  mortgage. 

71.  The  Court  will  not,  by  an  interlocutory  order,  before 
the  hearing,  charge  a  party  who  is  in  possession  of  an  estate, 
and  who  has  been  ordered  to  pay  an  occupation  rent  to  the 
receiver,  with  the  amount  of  such  rent,  for  any  period  ante- 
cedent to  the  date  of  the  order  for  fixing  the  rent  and  appoint- 
ing the  receiver.^ 

72.  Where  a  receiver  of  rents  has  been  appointed,  in  a  suit 
to  which  the  mortgagee  is  not  a  party,  and  the  rents  are  paid 
into  Court ;  the  Court  will  not  order  them  paid  to  him, 
although  he  had  notified  the  tenants  to  pay  him.^ 

78.  A  mortgage-debt  being  all  due,  and  the  security  defec- 
tive, the  mortgagee  brought  a  bill  to  foreclose,  and  obtained 
an  injunction  against  the  collection  of  rents  by  the  purchaser 
of  the  equity,  and  the  appointment  of  a  receiver.  The  pur- 
chaser had  taken  a  note  from  the  tenant  for  the  arrears  of 
rent,  secured  by  a  mortgage  of  personal  property  from  a  third 
person.  Held,  no  merger  of  the  rent,  and  that  the  receiver 
was  entitled  to  collect  it,  in  preference  to  the  purchaser  of  the 
equity.'^ 

74.  In  the  case  of  Meaden  v.  Sealey,^  the  Court,  in  ap- 
pointing a  receiver  upon  motion,  refused  to  authorize  him  to 
expend  .£100  in  putting  leasehold  houses,  included  in  the 
mortgage,  into  a  fit  state  for  occupancy  ;  although  £2,000 
was  due  on  the  mortgage,  and  no  payment  of  principal  or 
interest  had  been  made  for  a  considerable  time,  and  most  of 
the  houses  were  unfinished  and  unoccupied. 

75.  AU  parties  in  interest  should  regularly  be  before  the 

1  Llovd  V.  Mason,  2  My.  &  C.  487.  3  Lof<kv  v.  Mauger,  3  Sandf.  Ch.  69. 

-  Cootc,  430.  *  6  Hare,  620. 


VOL.  I. 


38 


446  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

Court,  in  order  to  justify  a  decree  to  account  for  rents  and 
profits  received. 

76.  In  1808,  Webb  mortgaged  to  Haskell ;  in  1816,  Has- 
kell assigned  his  mortgage  to  the  defendant,  Lewis  ;  and  in 
1831,  Lewis  assigned  it  to  the  Portland  Manufacturing  Com- 
pany. In  1812,  the  mortgagor  conveyed  to  John  Gordon, 
who,  in  1832,  conveyed  to  the  plaintiff.  Upon  a  bill  to  redeem 
against  Lewis  and  the  company,  held,  the  plaintiff  could  not 
have  a  decree  for  payment  of  the  rents  and  profits  to  him, 
until,  by  supplemental  proceedings,  the  plaintiff  and  other 
parties  in  interest  had  opportunity  to  appear.^  (/) 

1  Gordon  v.  Lewis,  2  Sumn.  145. 


(V)  In  Maine  and  Rhode  Island,  the  mortgagor  will  be  entitled  to  redeem, 
by  paying  or  tendering  the  debt  due  with  interest  and  costs,  or  performing 
or  tendering  performance  of  any  other  condition  of  the  mortgage,  together 
with  the  amount  of  reasonable  expenses  incurred  in  repairs  and  betterments, 
over  and  above  the  rents  and  profits.  In  Maine,  if  the  mortgagor  has  paid 
money  to  the  mortgagee  or  brought  it  into  court,  Avithout  deduction  on 
account  of  the  rents  and  profits  received  by  the  mortgagee,  he  shall  be 
entitled  to  a  restitution  of  the  balance  due  him  on  this  account.  In  Massa- 
chusetts, if  the  mortgagee  or  any  one  under  him  has  had  possession,  he  shall 
account  for  the  rents  and  profits  and  be  allowed  for  reasonable  repairs  and 
improvements,  for  taxes  and  assessments,  and  other  necessary  expenses  in 
the  cai'C  and  management  of  the  estate.  If  there  is  a  balance  due  him,  it 
shall  be  added  to  the  amount  which  the  mortgagor  is  to  tender;  if  there  is  a 
balance  due  from  him,  it  shall  go  to  sink  the  debt.  In  Georgia,  a  mortgagee 
is  made  liable  for  taxes  on  the  land,  if  the  mortgagor  does  not  pay  them. 
Mass.  Rev.  St.  G36  ;  1  Smith's  St.  IGO,  IGl,  164  ;  Prince,  848  ;  Maine  Rev. 
St.  557. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  447 


CHAPTER    XVII. 


EXTINGUISHMENT   OF   A   MORTGAGE,  BY   PAYMENT,   RELEASE,  ETC. 

1.  In  general,  payment  of  the  debt  j  the  rule  above  stated.    Extinguishment 
pays  the  movtgage  also.  of  a  mortgage  without  direct  payment; 

2.  Payment  after  breach  of  condition  ;  I  by   renewal  of  notes,   appointment   of 
waiver  as  to  time.     Changing  the  security  I  executors,  legal  proceedings,  &c. 
for  a  debt  does  not  extinguish  the  mort-  i       38.  A]iplication    or    appropriation    of 


gage.     New  notes,  &c. 

1.3.  Effect  uj)on  the  mortgage  of  legal 
and  judicial  j)roceedings,  either  between 
the  parties,  or  in  connection  with  stran- 
gers. 


payments  ;  mutual  claims  and  offsets. 

46.  Presumptions  and  circumstantial 
evidence  as  to  payment.  Parol  evi- 
dence. 

52.  The  effect  of  payment  upon  the 


18.  Of  making   the    mortgagor    the  1  titles  of  the  respective  parties  and  their 

executor,  &c.  of  the  mortgagee.                 j  remedies. 

20.  Wiicther  «  f/e/5os/<  shall  be  treated  j  61.  Extinguishment  of  a  mortgage, 

as  payment.  by  a  transfer  of  the  land  to   the  mort- 

22.  Surrender  of  the  note  for  a  release  gagee. 

of  the   right  of  redemption;    whether  i  7.5.  Release  or  discharge  of  a  mortgage. 

payment.                                                      I  Discharge  upon  the  record. 

24.  Exceptions  and  qualifications  to  :  84.  When  a  release  may  be  avoided. 

1.  From  the  intimate  connection  between  the  debt  secured 
by  mortgage  and  the  mortgage  itself,  which  has  been  already 
explained,  (see  chap,  xi.)  it  of  course  results  as  a  general 
proposition,  that  whatever  extinguishes  the  former,  puts  an 
end  to  the  latter  ^Iso.  (a)     Considering  a  mortgage  as  a  con- 


(«)  "A  mortgage  is  an  assignment  on  condition  ;  the  condition  being  per- 
formed, the  conveyance  is  void  ah  initio.  Equity  dispenses  with  the  time, 
and  when  the  money  is  paid,  the  conveyance  is  void  in  equity  and  conscience." 
Per  Wigram,  Yice-Chancellor,  Viscount,  &c.  v.  Morris,  3  Ilarc,  405. 

"A  mortgage  is  but  a  security  for  the  payment  of  the  debt.,  and  when  that  is 
paid  or  extinguished,  it  can  never  be  resuscitated."  Per  Duncan,  J.,  An- 
derson V.  NefT,  11  S.  &  R.  223. 

"  By  payment,  the  whole  mortgage  is  extinct ;  as  much  so  as  if  released 
or  paid  and  cancelled  of  record.  It  ceases  to  operate  either  at  law  or  in 
equity,  and  the  whole  title  revests  in  the  mortgagor.  To  call  it  a  mortgage 
would  be  an  abuse  of  the  word.  It  is  no  more  than  a  blank."  Per  Cowen, 
J.,  Cameron  v.  Irwin,  5  Ilill,  276. 


448  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

veyance^  it  would  be  more  technically  accurate  to  speak  of  it 
as  discharged^  or  released,  than  paid;  but,  when  viewed  in 
its  true  light,  of  a  mere  accompaniment  to  the  debt,  it  is  a 
correct  as  well  as  familiar  use  of  language,  to  say  that  the 
mortgage  as  well  as  the  debt  is  paid. 

2.  The  practice,  almost  universal  in  the  United  States,  is 
to  insert  in  the  mortgage  deed,  whether  of  a  freehold  or  a 
chattel  interest,  a  proviso,  that  on  payment  of  the  money  at 
the  time  mentioned  the  deed  shall  be  void.  And,  as  the 
time  of  performance  is  not  of  the  essence  of  this  contract, 
and  may  be  waived  by  parol,  the  acceptance  of  the  money 
after  the  day,  amounts  to  a  waiver  of  the  time,  and  is  a  sub- 
stantial performance  of  the  condition.^  (b) 

3.  But  the  receipt  of  interest  by  a  mortgagee,  several  times 
after  it  fell  due,  is  no  waiver  of  the  right  to  enforce  payment 
of  a  subsequent  instalment  and  forfeiture.^  Nor  will  such 
waiver  result  from  an  agreement  to  receive  part  of  the  instal- 
ment before  due,  not  complied  with  by  the  mortgagor.^ 

4.  A  mortgage  being  given  as   security  for  a  debt,   and 

1  2  Greeiil.  Cruise,  123,  n.  -  The  Contributors  v.  Gibson,  2  Miles, 

324.  3  ibjci. 


In  the  case  of  Jackson  v.  Davis,  (18  Johns.  7,)  it  was  held,  that  though 
the  recital  in  one  deed  of  another  ahsolute  deed  is  evid(!nce  of  the  existence 
of  the  latter,  an  outstanding  mortgage  cannot  be  thus  proved  ;  because,  if 
produced,  it  might  appear  to  have  been  satisfied,  which  would  revest  a  title 
in  the  mortgagor  without  release.  Payment,  and  a  reconveyance  of  the 
premises,  entitles  the  mortgagor  to  possession  of  (he  title  deeds,  and  he  may 
claim  damages  for  the  loss  of  them  unless  explained.  Brown  v.  Sewell,  21 
Eng.  Law  &  E(j.  508.  Payment  in  bills  of  a  specie-paying  bank,  current  at 
the  place  of  payment,  is  sufficient.  Augur  i\  Winslow,  1  Clark,  258.  See 
M'Donald  v.  M'Donald,  IG  Verm.  (J.'IO;  P>olIcs  v.  Cliauncey,  8  Conn.  389. 

(h)  The  mortgagee  cannot  be  compelled  to  receive  payment  or  reconvey 
the  property,  or  enjoined  from  bringing  a  suit,  before  the  day  named  in  the 
mortgage.  lirown  c.  Cole,  14  Sim.  427;  ace.  2  Greenl.  Cruise,  123,  n.;  9 
Jur.  290;  Abbe  v.  Goodwin,  7  Conn.  377.  So  the  purchaser  of  a  part  of  the 
land  cannot  require  the  mortgagee  to  receive  such  payment,  though  the 
mortgagor  is  insolvent.     Iloag  y.  Uathbun,  1  Clark,  12. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  449 

not  merely  for  any  particular  evidence  of  debt,  the  general 
rule  is,  that  nothing  but  actual  payment  of  the  debt  or  an 
express  release  will  operate  as  a  discharge  of  the  mortgage. 
The  lien  lasts  as  long  as  the  debt}  (c) 

5.  Various  applications  of  this  principle  are  found  in  the 
books.  Thus,  in  general,  a  mortgage  made  to  secure  a 
promissory  note  will  remain  security  for  any  new  note  given 
in  payment  of  the  former  one,^  [d)  unless  there  is  an  inten- 
tion to  the  contrary.^ 

1  Morse  v.  Clayton,  13  Sm.  &  M.  373  ;  Bank,  &c.  v.  Finch,  3  Barb.  Ch.  293  ; 

1  Freem.  Ch.  307  ;  Burton  v.  Pressly,  1  Heard  v.  Evans,  Freem.  Ch.  79. 

Chev.  2(1  part.  3  Hadlock  v.  Bulfinch,  31  Maine,  246. 

^Burdett  v.  Clay,  8  B.  Monr.  287; 

(c)  A  mortgage  debt  may  be  extinguished,  as  a  personal  claim  against 
the  mortgagor,  and  the  land  still  remain  liable  for  the  amount  of  such  debt. 
And  whether  the  debt  or  the  mere  personal  liability  was  meant  to  be  dis- 
charged, is  a  question  of  fact,  depending  on  the  circumstances  of  the  case, 
or  the  construction  of  the  release.  Tripp  v.  Vincent,  3  Barb.  Cha.  614. 
Whether  a  cliancje  of  mortgages  shall  be  regarded  as  payment  in  respect  to 
an  intervening  attachment,  see  Buswell  v.  Davis,  10  N.  H.  424. 

Mortgage  to  secure  a  bond  but  not  expressly  referring  to  it.  The  bond 
■was  avoided  by  a  fraudulent  alteration.  Held,  the  mortgage  M'as  still  valid, 
and  evidence  of  the  debt.  Gillett  r.  Powell,  Spears,  Ch.  142.  Where  a 
mortgagee  released  the  mortgagor  from  all  the  debts  and  liabilities  secured 
by  the  mortgage,  the  land  was  held  to  be  discharged.  Armitage  v.  Wick- 
lifle,  12  B.  Mon.  488.  Where  land  mortgaged  is  taken  for  j)ubUc  uses,  the 
damages  awarded  become  a  substitute  for  the  land,  and  subject  to  the  lien 
thereof  Astor  i'.  Miller,  2  Paige,  G8.  Especially,  where  the  residue  of  the 
mortgaged  premises  are  released  from  the  incumbrance.  Astor  v.  Hoyt, 
5  Wend.  603.  A  sale  on  credit  of  mortgaged  property,  under  a  power 
given  in  the  mortgage,  and  the  taking  of  the  purchaser's  twelve  months'  bond 
for  the  purchase-money,  does  not,  by  the  laws  of  Louisiana,  operate  as  a 
novation  or  extinguishment  of  the  mortgage  debt.  Union  Bank,  &c.  v.  Staf- 
ford, 12  How.  U.  S.  327. 

(d)  Taking  a  second  mortgage  is  no  waiver  of  a  prior  one  made  for  the 
same  debt.  Burdett  v.  Clay,  8  B.  Mon.  287.  So  taking  personal  security 
for  a  mortgage  debt  is  no  waiver  of  the  mortgage.  lb.  The  retaining  of 
an  old  note  and  mortgage,  as  security  for  a  new  note,  which  is  given  for 
the  amount  remaining  due  on  such  note  and  mortgage  ;  will  not  render  the 
n^w  note  invalid  for  want  of  consideration.  Langley  v.  Bartlett,  33  Maine, 
477. 

38* 


450  THE   LAW   OF  MORTGAGES.  [CH.  XVII. 

6.  In  the  case  of  Watkins  v.  Hill,'  it  was  held,  that  although 
a  negotiable  note  is  in  Massachusetts,  primd  facie,  payment 
of  the  debt  for  which  it  was  given  ;  yet  a  new  note,  given  in 
place  of  an  old  one  which  is  secured  by  mortgage,  to  an 
assignee  of  the  mortgage,  is  subject  to  the  same  security  as 
the  former  note,  unless  intended  as  payment ;  as  between 
the  mortgagee  and  mortgagor  or  their  respective  representa- 
tives ;  however  it  might  be  in  reference  to  a  purchaser  of  the 
equity  of  redemption. 

7.  In  the  case  of  Pomroy  v.  Rice,^  the  qualication  above 
suggested  was  rejected  by  the  same  Court,  and  the  rule 
adopted  without  exception,  that  where  a  mortgage  and  note 
are  given  to  secure  the  payment  of  a  sum  of  money,  the  re- 
newal of  the  note  does  not  operate  as  a  discharge  of  the 
mortgage.  This  was  an  action  upon  a  mortgage  made 
October  25,  1825,  to  one  of  the  plaintiffs,  who  were  husband 
and  wife,  before  marriage,  to  secure  two  notes  for  $200  each, 
one  payable  in  three,  the  other  in  seven  years,  from  April  1, 
1826.  About  April  1,  1828,  the  mortgagee  gave  up  these 
notes  and  took  two  new  ones  for  $200  each,  payable  like  the 
others  ;  also  a  separate  note  for  the  interest,  which  was  paid. 
The  object  of  this  renewal  was  to  obtain  the  interest.  In 
July,  1828,  the  plaintiffs  intermarried,  and  the  wife  deliv- 
ered the  notes  to  the  same  person  who  procured  the  former 
renewal,  and  requested  him  to  renew  them  in  the  husband's 
name.  On  or  about  April  1,  1829,  he  did  so,  taking  two 
negotiable  notes  in  the  husband's  name,  each  for  $212,  being 
the  principal  and  one  year's  interest,  one  payable  on  demand, 
the  other  in  four  years.  At  these  several  renewals,  nothing 
was  said  of  the  mortgage.  The  note  payable  on  demand 
was  paid.  April  26,  1829,  the  mortgagor  conveyed  to  the 
defendant  with  warranty.  The  defendant  pleaded  accord 
and  satisfaction,  upon  which  issue  was  joined.  In  giving 
the  opinion  of  the  Court  in  favor  of  the  demandant,  Mr.  JuS' 

J  8  Pick.  522;    liiuik,  &c.  ?.'.  Uo?c,  1      Hi  Verm.  G.^O ;  Eollcs  v.  Cluiunccy,  8 
Strol).  Eq.  257  ;   Duuslicc  v.  Parniclcc,     Conn.  .'589.  • 

19  Vcrm.  172 ;  M'Donald  v.  M'Donald,         -  IG  Tick.  22. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  451 

tice  Wilde  remarked  :  ^  "It  has  been  argued,  that  taking  the 
new  notes  is  prima  facie  evidence  of  the  payment  of  the  old. 
But  if  it  were,  the  circumstances,  under  which  the  notes  were 
renewed,  are  abundantly  sufficient  to  rebut  any  presumptive 
evidence  that  the  mortgage  debt  was  paid.  Tidd  was  re- 
quested to  have  the  notes  renewed,  which  ex  vi  termini  rebuts 
the  presumption  of  payment." 

8.  So  it  has  been  held,  that  where  a  mortgage  is  made  to 
secure  the  accommodation  indorser  of  a  note,  which  is  to  be 
discounted  at  a  bank,  and  the  usage  of  the  bank  is  to  renew 
such  notes ;  the  security  will  cover  each  renewal,  whether  so 
expressed  in  the  mortgage  or  not.^  So  the  mortgage  secu- 
rity will  apply  to  a  note  given  in  renewal  of  a  former  one, 
although  the  former  note  was  made  jointly  with  another 
person,  and  the  latter  by  the  mortgagor  alone.^  So  where  a 
mortgage  was  given  to  secure  the  indorser  of  certain  notes, 
which  at  maturity  were  renewed  by  giving  others  with  differ- 
ent names,  but  the  mortgagee  still  remained  liable  as  at  first, 
no  new  credit  was  given,  and  he  finally  paid  the  new  notes ; 
held,  the  mortgage  was  still  valid.*  So  the  amount  of  the 
note  may  be  increased  or  diminished.^  So  if  the  mortgagee 
indorse  the  note  and  afterwards  pay  it,  this  does  not  dis- 
charge the  mortgage.*^  So  a  renewal  does  not  affect  the 
security,  even  if  there  is  no  express  agreement  as  to  its  con- 
tinuance.' So  although  it  was  originally  stipulated  that  a 
note  should  be  renewed  only  to  a  certain  time,  and  it  was 
renewed  for  three  years  afterwards  ;  the  bank  may  still  hold, 
as  against  a  subsequent  mortgagee.^  So  a  new  note  will  be 
secured  by  the  mortgage,  though  differing  from  the  old  one, 
in  being  made  payable  at  a  particular  place.  So  .a  mort- 
gage, given  by  one  of  several  holders  of  land,  for  his  ratable 

1  16  Pick.  24.  *  Pond  v.  Clarke,  U  Conn.  .-534,  (over- 

2Enston  v.  Friday,  2  Ricli.  (8.  C.)  nilinf?  Peters  r.  Goodrich,  3  Conn.  146.) 

427,  n.;  Handy  v.  Commercial,  &c.,  10  ^  i^pi^i^cj-ijoff  ^,  Lgn^jing^  4  Johns.  Ch. 

B.  Mon.  98;  Smith  v.  Prin.cc,  14  Conn.  65. 

472.  «  IJogers  r.  Traders'.  &c.,  6  Paifrc,  .')83. 

'^  New   Hampshire,   &c.    v.   Willard,  '  Cnllum  v.  Branch,  >.<:c..  23  Ala.  797. 

10  N.  H.  210.  s  Farmers',  &c.  v.  Mutual,  &c.,  3  Leigh, 

69. 


452  THE   LAW    OF   MORTGAGES.  [CH.  XVII. 

proportion  of  a  debt  secured  by  a  mortgage  upon  the  whole, 
is  a  continuation  of  the  lien  acquired  under  the  original 
mortgage.! 

9.  A  note  may  be  extended  by  the  extension  of  the  mort- 
gage which  secures  it.  Thus,  a  mortgage  being  conditioned 
for  the  payment  of  two  notes  at  different  times,  it  was  agreed 
to  "  extend  the  mortgage  fifteen  or  twenty  days."  Held,  the 
payment  of  each  note  was  hereby  extended  twenty  days  be- 
yond its  maturity,  but  no  further.^ 

10.  A  purchaser  of  lands  executed  to  the  seller  notes  and 
mortgages  of  the  lands  for  thevprice.  On  the  same  day,  the 
notes  were  given  up,  and  a  written  agreement  made  between 
the  parties,  that  the  mortgagor  would  pay  the  amount  of 
them  upon  certain  notes  from  the  mortgagee  to  a  third  per- 
son, given  for  the  same  lands,  and  that  such  payments  should 
be  applied  on,  and  be  a  discharge  of,  the  mortgages.  The 
mortgagee  assigned  the  mortgages  and  the  agreement,  and 
the  assignee  also  assigned  them.  Upon  a  bill  by  the  second 
assignee  to  foreclose  ;  held,  the  mortgages  were  still  in  force, 
and  the  bill  was  maintained.^  The  Court  say  :  *  —  "It  was 
certainly  competent  for  the  parties,  by  their  agreement,  to 
change  the  mode,  or  particular  terms  of  payment,  or  even 
amount,  and  still  retain  the  mortgage  as  security  for  the  sum 
due,  if  they  thought  proper.  Such  an  agreement  was  not 
immoral,  and  it  violated  no  law ;  and  it  would  be  hard  to 
assign  any  reason  why  parties  capable  of  contracting  might 
not  enter  into  such  an  agreement." 

11.  One  owing  a  debt  of  $2,000  assigned  to  the  creditor 
two  notes  of  $1,000  each,  and  also  gave  him  a  mortgage  of 
real  estate.  The  debt,  except  $1,100,  being  afterwards  paid, 
the  creditor  gave  up  the  notes,  and  took  the  debtor's  notes 
for  this  sum.  Held,  the  mortgage  remained  as  security  for 
the  last-named  notes.^ 


1  Wliittiiker  v.  Dick,  5  How.  (Miss.)         ^  IIiij;uniii  v.  Starkwcatlier,  5  Gilm. 
290;  Lcc  V.  Porter,  5  Johns.  CIi.  208.        492. 
^  Flanders  v.  Uarstow,  G  SFiejjl.  357.         *  5  Gilni.  497. 

6  M(C:oriiiiek  v.  Digby,  8  Biaekf.  99. 


CH.  XVII.]  PAYMENT,   RELEASE,    ETC.  453 

11  a.  If  a  guardian  give  a  mortgage  of  indemnity  to  his 
surety,  who  joins  him  in  a  new  bond ;  the  mortgage  is  secu- 
rity for  such  bond.^ 

11  h.  A  bond  secured  by  mortgage  was  paid  by  a  check, 
and  a  note,  payable  on  time,  which  were  indorsed  on  the 
bond,  and  the  bond  given  up.  The  note  was  paid  when 
due.     Held,  the  mortgage  was  not  extinguished.- 

12.  Mortgage  to  secure  £10,000,  with  interest.  Before 
any  default,  the  mortgagor  paid  £7,000,  by  check,  and  gave 
two  bills  of  exchange  drawn  by  himself  and  company  upon 
himself,  and  accepted  by  him,  for  the  balance,  taking  from 
the  mortgagee  the  following  memorandum  :  "  Received,  &c., 
(describing  the  securities,)  which  are  in  full  of  principal  and 
interest  due  to  me  upon  a  mortgage,  &c.,  and  I  do  hereby 
undertake,  whenever  required,  to  execute  a  conveyance  of 
the  said  property."  The  title  and  mortgage  deed  of  the 
premises  were  delivered  to  the  mortgagor.  The  check  was 
paid,  but  the  bills  were  dishonored.  The  mortgagor  con- 
veyed to  a  trustee  for  benefit  of  creditors,  and  then  became 
bankrupt,  and  the  mortgagee  never  reconveyed  the  premises. 
The  mortgagee  brings  a  bill  in  equity  against  the  mortgagor, 
his  trustee,  and  his  assignee  in  bankruptcy.  Held,  the  above 
transactions  did  not  discharge  the  mortgage,  but  the  plaintiff 
was  entitled  to  a  decree  against  all  the  defendants  for  a 
restoration  of  the  deeds  and  a  foreclosure.^  The  Vice-Chan- 
cellor  says  : *  —  "If  I  were  satisfied  that  the  agreement  be- 
tween them  was  understood  and  intended  by  them  to  be, 
that  the  mortgaged  estate  should  be  absolutely  discharged, 
whether  the  bills  were  honored  or  dishonored,  productive  or 
waste  paper,  however  unusual  or  improvident  I  might  con- 
sider such  an  agreement,  I  might  very  possibly  have  thought 
it  right  to  give  effect  to  such  a  contract  clearly  proved.  It  is 
contended  that"  the  transactions  above  stated  "  amount  to 
clear  proof  of  such  an  agreement.     I  am  not  however  satis- 

1  Bol)bitt  V.  Flowers,  1  Swan,  511.  3  Teed  v.   Carruthurs,  2  Y.  &  Coll. 

2  Maryland,  &o.  v.  Wingert,  8  Gill,     (Clia.)  31. 

170.  *  Ibid.  pp.  39,  40. 


454  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

.fied  that  this  as  between  themselves,  was  intended  by  them  ; 
the  form  of  the  receipt  and  the  facts  to  which  I  have  referred, 
being,  in  my  judgment,  neither  conclusive  on  the  point,  nor 
of  themselves  sufficient  to  establish  so  immobable  a  state  of 
things.  I  think  the  case  also  capable,  if  necessary,  of  being 
viewed  in  a  manner  analogous  to  that  in  which  questions  of 
lien  between  vendors  and  purchasers  of  real  estate  are  con- 
sidered. Generally,  where  a  vendor  receiving  bills  for  the 
purchase-money  signs  a  receipt  for  the  amount  as  cash,  and 
actually  conveys  the  estate  as  upon  payment,  he  retains,  as 
between  him  and  the  purchaser,  a  lien  on  the  estate  for  the 
money  in  the  event  of  the  bills  being  dishonored,  unless  the 
purchaser  can  show  an  agreement  to  the  contrary.  Why 
should  a  mortgagee  reconveying  to  the  mortgagor,  on  receiv- 
ing payment  in  the  shape  of  bills,  be  in  a  worse  situation 
than  a  vendor  having  or  not  having  a  binding  contract  prior 
to  the  conveyance  ?  In  the  present  case  a  reconveyance  has 
not  taken  place  ;  but  probably  if  it  had,  (though  it  is  not 
necessary  to  decide  this  point,)  it  would,  in  my  judgment, 
have  made  no  difference." 

13.  Substantially  the  same  principle  has  been  applied  in 
various  cases,  where  an  extinguishment  of  the  debt,  in  terms 
secured  by  mortgage,  has  been  set  up  on  other  grounds  than 
actual  payment  of  money. 

14.  In  the  case  of  Gary  v.  Prentiss,^  it  appeared  that  the 
defendant  made  a  mortgage  to  the  plaintiff  to  secure  a  note 
not  negotiable ;  and  subsequently,  a  creditor  of  the  plaintiff 
summoned  the  defendant  in  a  trustee  process  against  the 
plaintirt",  recovered  judgment  against  the  defendant,  and  com- 
mitted him  on  execution,  but  afterwards  gave  him  a  release 
of  the  judgment.  In  an  ejectment  upon  the  mortgage,  held, 
the  facts  above  stated  were  no  defence  to  the  action. 

14  a.  And  the  sam.e  principle  has  been  applied,  even  where 
the  mortgagor  has  paid  the  amount  of  the  mortgage  debt 
under  the  trustee  process,  but  as  due  to  a  third  person,  the 
mortgagee  not  being  party  to  the  suit. 

1  7  Mass.  63. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  455 

14  b.  A.  brought  his  bill  against  B.,  to  foreclose  a  mort- 
gage. Pending  the  proceeding,  B.  was  garnisheed  as  the 
debtor  of  C,  and  judgment  rendered  against  him  as  garnishee 
of  the  mortgage  debt,  on  the  ground  that  C.  was  in  fact  the 
owner  of  the  mortgage,  and  that  it  was  held  by  A.  in  fraud 
of  the  creditors  of  C.  B.  paid  the  judgment.  Held,  such 
payment  was  no  defence,  as  the  Court  had  no  authority  to 
render  such  judgment  against  him  as  garnishee,  A.  not  being 
a  party  to  the  proceeding,  and  having  no  opportunity  to 
defend  his  rights.^ 

15.  So  the  commitment  of  the  mortgagor  by  the  mortgagee 
himself,  in  a  suit  upon  the  debt,  does  not  extinguish  the 
mortgage.2 

16.  In  the  case  of  Davis  v.  Maynard,^  a  mortgage  was 
made  to  secure  a  note.  After  the  mortgagor's  equity  of 
redemption  had  been  taken  and  sold  on  execution,  the  mort- 
gagee received  from  him  a  recognizance  acknowledged  before 
a  Justice  of  the  Peace  for  the  sum  due  on  the  note,  which 
was  thereupon  left  with  the  Justice,  who  afterwards,  without 
any  direction  from  the  mortgagee,  delivered  it  to  the  maker. 
It  was  held,  that  the  taking  of  the  recognizance  in  lieu  of  the 
note  did  not  discharge  the  mortgage.  The  Court  say  :  *  — 
"  The  mortgage  and  the  note  were  two  distinct  securities. 
Nothing  but  payment  of  the  debt  ivill  discharge  the  mortgage. 
This  position  is  grounded  on  the  words  of  the  conditions  of 
the  mortgage,  which  always  are,  that  if  the  money  be  paid, 
then  the  note  or  bond  as  well  as  the  mortgage  deed  shall  be 
void,  and  otherwise  both  shall  remain  in  full  force.  By  the 
terms  of  the  contract,  .nothing  but  payment  is  to  avoid  it." 

17.  We  have  seen  that  proceedings  against  the  person  of 
the  mortgagor  do  not  discharge  the  mortgage.  The  question 
often  arises,  whether  legal  and  judicial  proceedings  in  reference 
to  the  mortgaged  property  itself,  either  between  the  parties, 
or  in  connection  with  third  persons,  operate  as  a  constructive 


1  Lawrence  v.  Lane,  4  Gilman,  354.  ^  9  Mass.  242. 

'^  Davis  V.  Battine,  2  W.  &  My.  76.  *  lb.  247. 


456  THE   LAW   OF   MORTGAGES.  [cH.  XVII. 

extinguishment.  Upon  this  subject  it  has  been  held,  that  in 
general,  the  release  of  a  judgment  recovered  for  the  mort- 
gage debt  discharges  the  mortgage.^  But  where  a  mortgagee 
recovers  judgment  upon  the  mortgage  debt,  takes  out  execu- 
tion, and  gives  a  receipt,  acknowledging  full  satisfaction  there- 
upon ;  these  facts  do  not  show  conclusively  a  payment  and 
discharge  of  the  mortgage.  Thus,  where  the  debtor,  the  day 
before  taking  such  receipt,  conveyed  his  estate  to  a  third 
person,  who,  on  the  following  day,  transferred  it  to  the  mort- 
gagee ;  held,  the  satisfaction  of  the  judgment  must  be  con- 
strued as  designed  merely  to  confirm  the  mortgagee's  title  ; 
the  supposition  of  any  payment  of  money  involving  the 
absurdity,  that  either  the  mortgagor  or  his  grantee  released 
all  title  to  the  land,  at  the  very  moment  when  the  money  to 
redeem  the  land  was  paid  to  the  party  taking  the  release.^ 

17  a.  In  Pennsylvania,  since  the  statute  of  April  11,  1835, 
a  mortgage  which  is  the  first  incumbrance  on  the  premises  is 
not  discharged  by  a  sheriff's  sale,  under  a  judgment  for  taxes 
subsequently  assessed.^ 

18.  A  mortgage  is  not  extinguished  by  the  mortgagee's 
making  the  mortgagor  his  executor,*  nor  by  the  appointment 
of  the  mortgagor  as  administrator  of  the  mortgagee.  Thus, 
in  the  case  of  Kinney  v.  Ensign,-^  certain  land  having  been 
twice  mortgaged,  after  breach  of  condition,  the  mortgagor 
was  appointed  administrator  of  the  second  mortgagee,  and 
returned  an  inventory,  including  his  own  debt.  An  assignee 
of  the  prior  mortgage  purchased  the  mortgagor's  right  of 
redemption.  Held,  in  a  bill  to  redeem,  brought  by  the  mort- 
gagor against  such  assignee,  that  the  taking  out  of  adminis- 
tration was  not,  in  reference  to  the  defendant,  a  payment  and 
extinguishment  of  the  second  mortgage,  but  the  plaintitf  was 
entitled  to  redeem.  Chief  Justice  Sliaw  remarked  :  ^  —  "  The 
taking  of  administration  by  the  debtor  is  not  in  fact  or  in 
law,  to  all  purposes,  payment  of  the  debt.     As  between  the 

1  Porter  V.  Perkins,  5  Muss.  237.  ■»  Miller  v.  Donaldson,  17  Ohio,  2G4. 

'^  I'erkins  v.  Pitts,  11  Muss.  125.  ^  18  Pick.  2;i2. 

'^  Perry  v.  Brintoii,  1  Ilarr.  202.  «  Ih.  230,  237. 


CH.  XVII.]  PAYMENT,   RELEASE,    ETC.  457 

administrator  himself,  and  those  beneficially  interested  in  the 
estate,  he  is  held  to  account  for  it  as  a  debt  paid,  from  con- 
venience and  necessity,  because  the  administrator  cannot  sue 
himself,  and  cannot  collect  his  own  debt  in  any  other  mode 
than  by  crediting  it  in  his  administration  account.  The 
complainant  is  'in  a  situation  to  do  just  what  any  other 
administrator  would  do,  as  if  he  were  not  himself  the  original 
mortgagor.  On  redemption,  he  will  be  put  into  possession 
of  the  estate ;  but  he  will  hold  in  autre  droit ;  his  seisin  and 
possession  will  be  according  to  his  title,  and  that  will  be,  and 
will  appear  by  the  record  to  be,  in  his  representative  capacity. 
Then  there  are  express  statute  provisions,  that  the  estate 
recovered  shall  be  held  to  the  use  of  the  heirs  of  the  intestate 
mortgagee,  and  the  administrator  shall  have  a  license  to  sell, 
if  necessary  for  the  payment  of  debts." 

18  a.  A.  conveyed  land  to  his  children,  and  afterwards,  but 
before  registration  of  the  deed,  mortgaged  it  to  B.,  to  secure 
a  note,  and  died  intestate,  leaving  personal  estate,  after  satis- 
faction of  the  widow,  not  equal  to  the  note.  C,  one  of  the 
children,  became  administrator,  paid  the  note  from  his  own 
money,  and  took  an  assignment  of  it,  with  a  conveyance  of 
the  land.  He  afterwards  transferred  the  note  and  the  property 
to  D.,  who  brings  a  bill  to  foreclose  against  the  heirs  of  A. 
Held,  the  transaction  was  not  a  payment  by  C,  as  adminis- 
trator, but  a  purchase  of  the  mortgage  debt  by  him,  on  his 
own  account,  and  the  plaintiff  was  therefore  entitled  to  fore- 
close.^ 

19.  One  Squires,  having  made  a  note  to  Lothrop,  gave 
him  a  mortgage  as  security,  having  previously  made  a  deed 
to  his  children,  which  was  not  recorded  till  after  the  mortgage. 
Under  this  conveyance,  the  defendants  claimed  a  portion  of 
the  land  mortgaged.  -The  plaintiff,  as  assignee  of  the  mort- 
gage, brings  a  bill  to  foreclose.  It  appeared  that  his  title  was 
derived  in  part  through  a  son  of  the  mortgagor,  who,  at  the 
time  of  paying  the  debt,  and  taking  an  assignment  of  the 

1  De  Forest  v.  Hough,  13  Conn.  472. 

VOL.  I.  39 


458  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

mortgage,  was  also  an  administrator  upon  the  estate  of  the 
mortgagor,  deceased ;  but  the  payment  was  made  from  the 
administrator's  own  funds,  and  the  land  transferred  to  him 
by  the  mortgagee.  Held,  the  plaintiff  might  maintain  a  bill 
for  foreclosure  against  the  other  children  of  the  mortgagor, 
the  mortgage  not  being  extinguished  by  the  payment  and 
transfer  above  stated.^ 

20.  The  question  sometimes  arises,  whether  a  deposit  of  the 
amount  of  the  mortgage  debt  will  operate  as  payment.  Thus, 
a  mortgagor  sold  the  land,  received  therefor  the  purchaser's 
note,  and  agreed  to  extinguish  the  mortgage.  He  then 
delivered  the  note  to  the  mortgagee,  with  an  agreement  that 
the  proceeds,  when  received,  should  go  in  payment  of  the 
mortgage.  He  also  deposited  with  the  mortgagee  the  amount 
of  the  mortgage  debt,  in  order  to  stop  the  interest,  but  with 
an  agreement  that  it  should  not  go  to  pay  the  mortgage. 
The  mortgagee  gave  a  receipt  for  the  money,  and  retained 
the  mortgage  and  the  purchaser's  note.  This  note  was  not 
paid.  Held,  the  facts  above  stated  did  not  show  a  payment 
of  the  mortgage,  inasmuch  as  it  was  agreed  by  the  parties,  at 
the  time  the  money  was  deposited,  that  it  should  not  dis- 
charge the  mortgage.^ 

21.  The  solicitor  of  a  mortgagee  refused  to  receive  from 
the  mortgagor  a  partial  payment  on  the  mortgage,  as  a  pay- 
ment to  stop  interest,  but  consented  to  receive  it  as  a  deposit, 
with  the  understanding,  that  if  the  mortgagee  would  take  it 
as  payment  and  allow  interest,  it  should  be  indorsed  on  the 
mortgage.  The  mortgagee  refused  to  receive  the  money, 
unless  the  whole  debt  was  paid  ;  but  the  solicitor  afterwards 
handed  it  to  him,  with  the  understanding  that  he  was  not  to 
allow  interest,  till  payment  of  the  balance,  of  which  the  mort- 
gagor had  notice,  and  assented  thereto.  The  mortgagee,  on 
receiving  the  money,  used  it  as  his  own.  Held,  the  money 
should  be  appli(!d  as  payment,  at  the  time  it  was  received 
and  used  by  the  mortgagee.^ 

1  Hough  V.  Dc  Forest,  13  Conn.  473.  ^  Toll  v.  Ililler,  11  Taigc,  228. 

2  Howe  V.  Lewis,  14  Pick.  329. 


CH.  XVII.]  PAYMENT,    RELEASE,    ETC.  459 

21  a.  A  mortgagor,  after  the  mortgage  debt  became  due, 
delivered  to  the  mortgagee  $1,000,  which,  after  being  retained 
for  a  few  days,  was  retm-ned  to  the  mortgagor  at  his  solicita- 
tion, and  not  indorsed  upon  the  mortgage.  Held,  a  payment 
on  the  mortgage  ;  and  the  redelivery  did  not,  as  against 
creditors,  revive  the  mortgage.^ 

21  h.  Where  a  mortgagee  takes  the  assignment  of  a  note, 
giving  a  receipt  therefor,  with  the  agreement  to  release  the 
mortgage  on  payment  of  the  note ;  the  mortgage  continues 
in  force  till  such  payment,  nor  is  he  bound  to  bring  a  suit  on 
the  note.2 

21  c.  In  a  real  action  by  a  mortgagee  against  the  mort- 
gagor, it  is  not  a  good  plea,  that  the  mortgagee  agreed  puis 
darrein  continuance  to  accept  in  payment  of  the  debt  property 
to  be  appraised  ;  that  it  was  accordingly  appraised  for  more 
than  the  debt,  and  that  the  mortgagor  had  tendered  a  con- 
veyance, which  was  refused.^ 

22.  A  surrender  of  the  mortgage  note  to  the  mortgagor,  in 
consideration  of  a  release  of  the  equity  of  redemption,  will 
not  necessarily  operate  as  a  payment  of  such  note  in  reference 
to  a  second  mortgagee. 

23.  A  mortgagor  released  his  equity  of  redemption  to  the 
former  of  two  mortgagees,  who  in  consideration  thereof  gave 
up  his  mortgage  note.  Held,  the  second  mortgagee  could 
not  foreclose  the  first,  without  paying  the  first  mortgage.* 
Swift,  C.  J.,  says,°  (three  Judges  dissenting,)  "  The  operation 
of  this  transaction  is  merely  the  taking  of  the  pledge  for  the 
debt.  This  is  no  more  than  adjusting  the  claims  between 
the  first  mortgagee  and  the  man  who  has  the  ultimate  equity 
of  redemption  ;  it  is  only  relinquishing  the  legal  remedy  on 
the  note  ;  it  is  no  payment  of  it.  There  must  be  a  payment 
of  the  debt  by  something  besides  the  thing  pledged  to  secure 
it ;  otherwise  there  is  no  satisfaction  of  the  mortgage." 

1  Marvin  v.  Vedder,  5  Cow.  671.  *  Baldwin  r.  Norton,  2  Conn.  161. 

2  Hynes  v.  Kogcns,  6  Litt.  229.  5  jb.  p.  163. 
^  Rochester  v.  Whitehouse,  1.5  X.  H. 

468. 


460  THE  LAW  OF  MORTGAGES.        [CH.  XVII. 

23  a.  A  mortgagee  consented  to  a  sale  by  the  mortgagor. 
The  purchaser  gave  his  notes  for  the  purchase-money,  secured 
by  a  mortgage  upon  the  premises,  and  the  first  mortgagee 
received  an  assignment  of  a  part  of  such  notes  in  payment  of 
his  debt.  Held,  the  rights  of  the  first  morl^age  were  not 
simply  those  of  an  assignee  of  the  second  mortgage  notes, 
and  in  receiving  them,  he  did  not  relinquish  his  right  to  prior 
satisfaction  out  of  the  property.^ 

23  b.  Where  a  mortgagor  suffers  the  mortgaged  premises 
to  be  sold  for  taxes,  and  buys  them  in,  he  does  not  thereby 
defeat  the  lien  of  the  mortgage,  but  his  purchase  is  merely 
a  payment  of  the  taxes  by  him.^ 

24.  In  qualification  of  the  general  rule,  that  a  mortgage 
will  be  extinguished  only  by  payment,  not  by  mere  change 
of  the  evidence  of  debt,  it  is  to  be  remarked,  that,  where  the 
particular  facts  of  the  case  indicate  the  intention  and  under- 
standing of  the  parties,  that  the  substitution  of  a  new  secu- 
rity shall  operate  as  payment  of  the  old  debt ;  the  mortgage 
is  held  to  be  discharged.  So  where  any  other  transaction 
between  the  parties  indicates  a  similar  purpose,  and  there  is 
no  useful  or  equitable  object  to  be  effected  by  an  opposite 
construction  ;  the  mortgage  will  be  held  extinguished,  though 
not  in  form  discharged  or  cancelled.  It  is  said,  that  the 
mortgage  is  extinguished  by  payment /yow^/ie  debtor's  funds. ^ 
So,  where  the  mortgage  debt  is  paid,  the  mortgage  cannot 
be  kept  alive  by  a  parol  agreement,  as  security  for  another 
debt.4 

25.  In  the  case  of  Fowler  v.  Bush,^  a  note  payable  by  in- 
stalments was  secured  by  mortgage.  After  the  first  instal- 
ment became  due,  the  holder,  being  an  assignee  of  the  mort- 
gage, demanded  payment,  saying  that  if  that  instalment 
were  paid,  he  could  sell  the  securities.  The  mortgagor  there- 
upon gave  him  a  note  on  time,  payable  to  order,  for  the  sum 
due,  which  the  holder  proposed  to  have  discounted  at  a  bank ; . 

1  Bank,&c.  v.  Tarlcton,  23  Miss.  173.  *  Mead  v.  York,  2  Sckl.  449. 

2  Frve  V.  Bank,  &c.  1 1  Illin.  .'567.  ^  21  Pick.  230. 
8  Kinley  v.  Hill,  4  Watts  &  S.  426. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  461 

and  at  the  same  time  indorsed  on  the  former  note  — "  Re- 
ceived the  first  instalment  on  the  within,"  naming  the  sum. 
In  an  action  upon  the  mortgage  by  a  subsequent  assignee 
against  the  mortgagor,  it  was  held,  that  these  facts  consti- 
tuted a  payment  of  the  first  instalment,  and  not  merely  a 
change  of  security,  and  that  the  mortgage  was  -pro  tanto 
discharged. 

26.  One  Temple  mortgaged  land  to  Bailey,  the  defendant, 
to  secure  several  notes  payable  at  different  times,  and  after- 
wards mortgaged  the  same  land  to  Holman,  the  plaintiff. 
Subsequently,  and  before  maturity  of  either  of  the  notes, 
Temple  gave  the  defendant  a  warranty  deed  of  the  premises, 
in  full  satisfaction  and  discharge  of  these  notes  and  another 
one.  The  notes  were  given  up,  but  the  mortgage  was  not 
discharged.  Upon  a  bill  in  equity  to  redeem,  brought  by 
Holman  against  Bailey,  it  was  held,  that  payment  of  the 
notes  before  maturity  was  as  effectual  to  defeat  the  defend- 
ant's mortgage,  as  if  made  at  the  time  they  became  due ; 
that  if  the  plaintiff's  mortgage  was  valid,  he  had  a  complete 
and  adequate  remedy  at  law  against  the  defendant,  by  writ 
of  entiy  ;  and  that  the  bill  could  not  be  sustained.' 

27.  In  the  case  of  Abbott  v.  Upton,-  Upton  gave  to 
Brigham  a  mortgage,  dated  December  20,  1832,  conditioned 
to  secm-e  a  note  for  $400,  payable  to  Smith,  signed  by  Upton 
as  principal,  and  Brigham  as  surety,  or  indemnify  Brigham 
therefrom.  On  the  6th  of  February,  1834,  the  plaintiff,  with 
one  Day,  at  the  request  of  Upton,  took  up  the  note,  and 
gave  a  new  one  for  $404,  signed  by  Upton,  Day,  and  the 
plaintiff,  payable  to  Smith  in  one  year,  with  interest.  At  the 
same  time,  Brigham,  by  a  writing  not  mider  seal,  assigned 
the  mortgage  to  Day  and  the  plaintiff,  and  the  mortgage  and 
the  note  secured  by  it,  w^hich  appeared  to  be  cancelled, 
were  passed  to  the  plaintiff.  August  11, 1836,  Brigham  duly 
assigned  the  mortgage  to  Day  and  the  plaintiff,  and  on  the 
27th  of  August,  Day  assigned  his  interest  therein  to  the 

1  Holman  v.  Bailey,  3  Met.  55.  2  19  pick.  434. 

39* 


462        '  THE  LAW   OF   MOETaAGES.  [CH,   XVII. 

plaintiff.  On  the  6th  of  February,  1834,  Upton  gave  to 
Day  and  the  plaintiff  a  mortgage  of  personal  property,  to  se- 
cure them  against  their  liability  on  the  note  signed  by  them. 
After  this  became  absolute,  Day  and  the  plaintiff  took  pos- 
session of  the  property,  which,  in  the  opinion  of  Upton,  was 
worth  from  $500  to  $600.  July  8,  1834,  Upton  conveyed 
the  demanded  premises  to  the  defendant.  A  verdict  was 
taken  for  the  plaintiff,  subject  to  the  opinion  of  the  Court. 
The  plaintiff  offered  to  discharge  the  personal  property, 
upon  satisfaction  of  the  judgment  in  this  case,  if  he  should 
prevaij.  It  was  held  by  the  Court,  that  when  the  note  to 
Smith  was  paid  and  discharged,  Brigham  was  fully  indem- 
nified, and  the  condition  of  the  mortgage  saved ;  and  that 
when  J.  Upton  gave  a  new  note,  for  a  different  sum,  with 
other  sureties,  and  other  security  to  indemnify  them,  Brigham's 
interest  in  the  land  ceased,  and  nothing  remained  to  pass  by 
his  assignment. 

27  a.  A.  gave  a  mortgage  to  B.,  to  indemnify  B.,  in  case 
he  should  have  to  pay  the  debt  of  A.,  conditioned  that  if  A. 
should  pay  and  satisfy  his  note,  by  renewal  or  otherwise, 
then  to  be  void.  A.  renewed  his  note  with  different  securi- 
ties, and  B.  assigned  the  mortgage  to  them.  Held,  the 
assignment  did  not  cut  off  the  intervening  rights  of  other 
mortgagees,  and  the  rights  of  B.  ceased  upon  the  renewal, 
a  transfer  to  others  not  having  existed  in  contemplation  of 
the  parties,  at  the  time  o£  the  execution  of  the  mortgage.^ 

28.  On  September  15,  1813,  a  mortgage  was  given  as  se- 
curity for  the  indorsement  of  a  note  dated  July  27,  1813,  for 
$400,  payable  ninety  days  after  date  at  the  Middletown 
Bank,  and  there  discounted  for  the  maker's  accommodation. 
When  that  note  fell  due,  it  was  taken  up,  the  indorser  pay- 
ing $83,  and  a  new  note,  with  the  same  names,  given  for 
the  balance.  September  3,  1814,  the  land  was  mortgaged 
to  another  person.  September  6,  1814,  the  first  mortgagee 
indorsed  a  note  for  $110,  part  of  the  original  debt  of  $400 

1  Bonham  v.  Galloway,  13  111.  G8. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  .  463 

at  the  bank,  which  he  was  afterwards  obliged  to  pay.  Held, 
the  indemnity  secured  by  the  first  mortgage  being  precisely 
coextensive  with  the  liability  of  the  mortgagee  as  indorser, 
his  lien  extended  only  to  the  first  note,  and,  as  to  subsequent 
advancements,  he  was  only  a  general  creditor.'  Hosmer, 
C.  J.  says  :^ — "  The  condition  provided,  that,  '  if  the  said 
Curtiss  should  pay  the  said  note,  and  indemnify  the  said 
Goodrich  from  his  said  indorsement,  the  deed  should  be 
void.'  The  specific  contract  referred  alone  to  a  note  dated 
the  27th  of  July,  1813.  By  the  non-payment  of  this  note 
Goodrich  might  be  damnified,  and  precisely  coextensive  with 
the  possible  damage  was  the  contract  of  indemnity.  The 
debt  he  never  guaranteed,  except  through  his  indorsement ; 
which  contract  would  be  extinguished  so  soon  as  the  note 
was  paid,  or  another,  with  the  consent  of  the  holder,  was 
substituted  for  it.  When  Goodrich  indorsed  the  above  note, 
he  had  no  idea  of  indorsing  another,  or  of  continuing  his 
responsibiUty  beyond  his  actual  contract.  The  indorsement 
of  the  subsequent  notes  therefore,  was  the  result  of  a  subse- 
quent contract."  On  the  other  hand.  Chapman,  J.  (dissent- 
ing) says  :  2  —  "  Nothing  but  a  strict  performance  of  this 
condition  could  prevent  the  legal  estate  from  vesting  in  the 
defendant.  It  is  admitted  that  the  condition  was  not  per- 
formed. The  legal  title  is  in  the  defendant,  and  the  object 
of  this  bill  is  to  divest  him  of  it.  This  the  plaintiff  is  en- 
titled to  do,  provided  he  can  show  that  the  defendant  has 
been  indemnified.  The  mortgagor  agrees  to  indemnify  the 
defendant  in  all  respects.  Has  the  mortgagor  ever  paid  the 
note  of  $400  ?  No.  Has  he  indemnified  the  first  mort- 
gagee ?  No  ;  but  the  first  mortgagee  has  indorsed  a  second 
note,  which  was  given  for  a  part  of  the  original  note,  and 
therefore  in  equity  he  has  lost  his  lien.  The  whole  argu- 
ment proceeds  upon  a  fallacy.  The  note  is  but  evidence  of 
the  debt.     The  renewal  of  a  note  is  no  payment  of  the  debt. 

1  Peters  v.   Goodricb,  3  Conn.    14G,  -  lb.  150. 

CovciTuled  in  14  Conn.  334  ;  see  supra,  ^  ib_  154. 

s.  8.) 


464  .  THE   LAW   OF   MORTGAGES.  [CH.  XVII. 

It  is  an  unvarying  rule  in  a  Court  of  Chancery,  never  to 
divest  one  of  a  legal  estate,  so  long  as  he  can  show  an  equi- 
table lien  on  it.  Should  the  first  mortgagee,  after  forfeiture, 
receive  payment  in  counterfeit  money  and  give  a  receipt  in 
full  for  it,  the  second  mortgagee  could  not  redeem,  without 
paying  the  whole  debt,  unless  the  first  mortgagee  had  re- 
leased. The  same  rule  applies  to  any  mistakes  in  a  settle- 
ment."    Brainard,  J.,  concurred. 

29.  If  the  mortgagee  takes,  for  the  amount  due  on  the 
mortgage,  the  note  of  an  assignee  of  the  mortgagor,  includ- 
ing annual  interest,  and  gives  up  to  the  assignee  the  mort- 
gagor's notes ;  this  is  not,  unexplained,  a  mere  renewal,  but 
the  substitution  of  a  new  security,  and  such  a  payment  as 
discharges  the  mortgage.' 

29  a.  Purchase  of  land  by  three  persons,  each  giving  a 
bond  for  his  share  of  the  price,  secured  by  a  joint  mortgage. 
The  vendor  afterwards  gave  up  one  of  the  bonds,  without 
the  consent  of  the  other  obligors,  taking  a  different  security. 
Held,  the  others  were  mere  sureties  for  this  obligor,  and 
were  discharged,  as  to  him,  by  this  proceeding.^ 

29  h.  A  mortgage  may  be  extinguished  by  the  laches  of 
the  mortgagee  in  enforcing  a  new  or  substituted  security. 

29  c.  A  mortgagor  sold  the  land,  agreeing  to  remove  the 
incumbrance.  It  was  also  agreed  between  him  and  the 
mortgagee,  that  the  latter  should  take  a  new  note  and 
another  mortgage  for  his  debt,  and  not  enforce  the  former 
mortgage,  if  the  property  included  in  the  latter  was  suffi- 
cient to  pay  the  debt.  The  property  was  thus  sufficient,  but, 
in  consequence  of  the  mortgagee's  delaying  for  sixteen 
months  to  record  the  new  mortgage,  it  was  lost  to  him  by 
other  deeds  and  mortgages  from  the  mortgagor.  Held,  the 
first  mortgage  was  discharged.*'^ 

29  d.  Mortgage  to  secure  the  mortgagee  for  an  indorse- 
ment of  the  mortgagor's  note.    The  note  was  paid  when  due, 

1  Ilaillock  V.  Uulfinch,  31  Maine,  240.        «  Tcaff  y.  Ross,  1  Ohio,  (State)  409. 
'^  Van  Kcnssclaer  v.  Akin,  22  Wend. 
549. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  465 

but  the  mortgage  afterwards  assigned,  for  valuable  consid- 
eration, with  the  assent  of  the  mortgagor.  Previous  to  the 
assignment,  the  mortgagor  made  another  mortgage,  which 
was  also  assigned,  and  the  mortgage  and  assignment  recorded 
before  the  assignment  of  the  former  mortgage.  Held,  after 
satisfaction  of  the  first  mortgage,  the  parties  might  revive 
the  security  as  between  themselves,  and  also  as  against 
themselves  in  the  hands  of  an  assignee,  but  not  as  against 
third  persons ;  and,  as  the  second  mortgage  and  the  assign- 
ment of  it  were  both  recorded  before  the  assignment  of  the 
first ;  the  holder  of  the  first  was  affected  by  notice,  and  was 
not  entitled  to  protection,  as  against  a  latent  equity. ^ 

29  e.  One  of  two  mortgagors,  having  assumed  the  mort- 
gage debt,  executed  a  new  mortgage  to  secure  it,  and  an 
individual  debt  of  his  own,  the  mortgagee  holding  the  old 
mortgage  as  collateral  security.  The  mortgagor  assigned 
his  property,  afterwards,  for  benefit  of  creditors,  and  the 
premises  were  sold  by  his  assignees,  free  from  all  incum- 
brances. The  purchaser  and  the  mortgagee  arranged  with 
the  assignees,  so  that  the  purchaser  secured  the  money  due 
on  the  second  mortgage  to  the  mortgagee,  who  assigned  the 
old  mortgage  to  the  purchaser,  who  brings  a  bill  for  fore- 
closure. Held,  the  securing  of  the  debt  by  the  pm'chaser 
was  a  satisfaction  of  the  mortgage,  which  became  functus 
fficio,  and  incapable  of  transfer  as  a  subsisting  security .^ 

29/,  A.  having  given  a  mortgage  to  B.,  A.  and  B.'s  agent 
agreed  to  convey  to  C,  on  his  securing  the  mortgage  debt. 
C.  gave  to  a  succeeding  agent  of  B.  a  deed  of  trust  of  slaves, 
to  secure  the  mortgage  and  other  debts.  Held,  the  mort- 
gage was  discharged.^ 

29  0-.  A.  conveyed  to  B.  and  C,  taking  back  a  bond  of 
defeasance.  Afterwards,  for  the  purpose  of  enabling  A.  to 
pay  B.  and  C,  A.  surrendered  to  them  their  bond,  and  they 
conveyed  to  D.,  to  whom  A.  also  conveyed  his  remaining 

1  Purser  v.  Anderson,  4  Ed.  Ch.  17.  3  Towler  v.  Buchannans,  1  Call,  187. 

2  McGiven  v.  Wlieelock,  7  Barb.  22. 


466  THE   LAW   OF   MORTGAGES.  [CII.  XVII. 

interest ;  and  thereupon  D.  advanced  a  certain  sum,  in  satis- 
faction of  the  amount  mutually  estimated  by  A.  and  B.  and 
C,  to  be  due  to  the  latter,  and  D.  at  the  same  time,  executed 
a  bond  of  defeasance  to  A.  Held,  although  this  amount 
was  less  than  the  sum  actually  due  to  B.  and  C,  yet  their 
mortgage  was  discharged.^ 

29  h.  So,  a  mortgage  may  be  extinguished  by  the  relative 
position  of  the  mortgagor  or  mortgagee,  and  the  represent- 
atives of  one  or  the  other  of  these  parties,  after  his  death  ; 
and  by  the  legal  proceedings  connected  therewith. 

30.  A  mortgage  was  made  to  the  father  of  the  mortgagor, 
as  security  for  a  bond.  Before  breach  of  condition,  the 
mortgagee  died,  having  appointed  his  son  to  be  his  executor. 
The  son  then  mortgaged  anew,  with  the  usual  covenants 
against  incumbrances  and  for  warranty,  and  the  second 
mortgagee  assigned  his  mortgage.  Subsequently,  the  son, 
as  executor,  assigned  the  mortgage  of  his  father,  with  the 
bond.  The  assignee  of  these  securities  recovered  possession 
in  a  suit  against  the  son  as  mortgagor ;  and  the  former  as- 
signee brings  the  present  action  for  the  land  against  the 
plaintiff  in  the  other  suit.  It  was  held,  that  the  action 
should  be  maintained,  because,  whether  the  appointment  of 
the  son  as  executor  extinguished  the  mortgage  given  by  him 
or  not,  it  was  certainly  extinguished  by  his  second  mortgage, 
which  conveyed  the  land  as  discharged  of  all  incumbrances.^ 

31.  Mortgage  to  secure  a  bond.  The  mortgagee  having 
died,  the  mortgagor  was  appointed  his  administrator,  and 
returned  an  inventory,  including  the  bond  debt.  He  after- 
wards settled  his  first  account,  charging  himself  with  the 
amount  of  personal  estate  returned  in  the  inventory  ;  and  a 
second  account,  charging  himself  with  the  balance  of  the 
first.  Thereupon  the  Probate  Court  passed  a  decree,  order- 
ing a  distribution  of  the  balance  among  the  heirs.  Held,  by 
these  proceedings  the  bond  debt  was  paid,  and  no  title  to 


^  Ilodgman  v.  Hitchcock,   15  Verm,         -  Ivitchic  i'.  Williams,  11  Muss.  50. 
374. 


CH.  XVII.]  PAYMENT,    RELEASE,    ETC.  467 

the  land  passed  by  a  subsequent  assignment  of  the  bond  and 
mortgage  by  the  administrator.' 

31  a.  A  sale,  under  order  of  the  Orphans'  Court,  for  pay- 
ment of  debts  of  an  intestate,  of  lands  mortgaged  by  a 
former  owner,  on  which  the  intestate  paid  the  interest, 
discharges  the  mortgage.^ 

32.  Where  a  mortgage  debt  is  discharged  by  a  bond  of 
the  heirs,  who  are  also  assignees  of  the  mortgage,  to  prevent 
a  sale  of  the  land  ;  the  mortgage  is  also  discharged.-^ 

33.  Where  the  owner  of  land,  subject  to  mortgage  given 
in  trust  for  certain  heirs,  is  appointed  trustee  of  the  heirs, 
thereby  acquiring  a  legal  title  to  the  mortgage ;  the  mortgage 
is  not  thereby  merged.  But  if  he  afterwards  convey  with 
warranty,  he  will  be  estopped  by  his  covenants  to  enforce  the 
mortgage  against  the  purchaser  for  his  own  benefit,  though 
nothing  but  actual  payment  can  deprive  the  heirs  of  their 
right  in  the  mortgage.  Such  payment  will  extinguish  the 
mortgage,  both  in  law  and  equity,  unless  the  trustee  mis- 
apply the  money  with  the  grantee's  knowledge  and  consent. 
And  unless  it  have  been  thus  misapplied,  the  law  will  apply 
it  to  the  mortgage.  If  the  conveyance,  made  subject  to  the 
mortgage  in  trust,  contains  an  agreement  on  the  part  of  the 
grantor  to  pay  all  incumbrances,  and  a  part  of  the  price  is 
retained  to  await  such  payment ;  the  grantor,  subsequently 
becoming  trustee  and  thus  entitled  to  the  mortgage,  is  bound 
to  apply  the  money  thus  retained  to  the  mortgage.^ 

33  a.  A  decree  enforcing  a  mortgage  is  a  destruction  or 
satisfaction  of  the  mortgage.'^ 

33  h.  If  property  mortgaged  is  sold  on  execution  against 
the  mortgagee,  and  bought  by  him  at  a  nominal  price,  the 
mortgage  debt  is  extinguished.'^ 

34.  It  is  held  in  Pennsylvania,  that  a  sheriff's  sale  of  mort- 
gaged premises,  upon  a  judgment  for  interest  due  on  the 

• 

1  Ipswich,  &c.  V.  Story,  5  Met.  310.  *  Hadlev  v.  Chapin,  11  Paige,  245. 

-  Aloore  v.  Slmltz,  13  Penn.  98.  &  Manigault  v.  Deas,  1  Bai.  Cli.  2S3. 

•      ^  Robinson   v.   Leavitt,  7  N.  11.  73 ;         s  Schnell   v.   Schrocder,    1  Bai.   Ch. 

Eichardson,  Cli.  J.,  dissenting.  334. 


468  THE  LAW  OF  MORTGAGES.        [CH.  XVII. 

mortgage  debt,  the  debt  not  being  due,  operates  as  a  fore- 
closure, extinguishes  the  equity  of  redemption,  transfers  the 
mortgagor's  legal  estate,  and  divests  the  lien  of  the  mort- 
gage. The  proceeds  are  brought  into  court,  subject  to  such 
lien,  and  belong  to  the  mortgagee  to  the  extent  of  the  debt 
and  interest,  in  preference  of  creditors  whose  liens  intervene 
between  the  mortgage  and  the  judgment.^ 

35.  A  mortgage  was  made'  to  secure  three  bonds,  payable 
at  different  times.  Judgment  was  recovered  upon  the  first, 
and  the  mortgaged  premises  sold  on  execution,  the  last  bond 
not  being  due.     Held,  the  mortgage  was  discharged.^ 

36.  An  equity  of  redemption,  sold  on  execution,  was  con- 
veyed, by  consent  of  the  purchaser,  to  a  third  person,  he 
agreeing  to  pay  the  purchase-money,  and  the  purchaser  to 
pay  the  mortgage.  The  latter  took  an  assignment  of  the 
mortgage,  with  the  note,  from  the  holder,  who  wrote  satisfied 
upon  the*  face  of  the  mortgage.  The  holder  of  the  note  then 
brings  an  action  upon  it  against  the  mortgagor.  Held,  the 
action  could  not  be  maintained.^  (e) 

37.  A  debtor,  whose  estate  was  subject  to  an  attachment, 
mortgaged  it  for  $3,200.  A  part  of  the  estate  was  after- 
wards set  off  on  execution,  in  completion  of  the  attachment, 
and  the  mortgagor  thereupon  gave  the  mortgagee  his  note 
for  $1,200,  secured  by  a  mortgage  of  personal  property. 
The  mortgagee  afterwards  assigned  the  former  mortgage  for 
$2,000,  and  the  assignee  paid  the  amount  of  the  execution, 
taking  a  conveyance  from  the  judgment  creditor.     The  pur- 

1  West  Branch,  &c.  v.  Chester,  11  2  Ucrpjer  r.  Hiester,  6  Whart.  210. 
Penn.  (1  Jones,)  282.  See  Kinnaraan  ■^  Waddle  v.  Cureton,  2  Speers,  53. 
V.  Ilcnny,  2  Ilalst.  Ch.  90,  G2G. 


(e)  A  mortgagee  covenanted  with  a  third  person*  to  foreclose  the  mort- 
gage and  gi%'fi  liim  the  benefit  of  the  decree.  The  equity  of  redemption 
was  afterwards  sold  on  execution,  and  the  covenantee  became  the  owner  of 
it,  and  the  mortgagee  released  to  him  his  title.  Held,  an  extinguishment  of 
the  covenant.     Savage  v.  Carter,  2  13.  Mon.  512. 


en.  XVII.]  PAYMENT,  RELEASE,   ETC.  469 

chaser  of  the  equity  of  redemption  brings  a  bill  to  redeem 
against  the  assignee  of  the  mortgage.  Held,  the  giving  of 
the  note  and  second  mortgage  wa^  a  payment  of  the  first  to 
the  amount  of  $1,200,  and  the  plaintiff  should  be  allowed  to 
redeem  for  $2,000  with  interest  from  the  time  of  assign- 
ment.^ 

38.  With  regard  to  the  application  or  appropriation  of 
payments  made  by  the  mortgagor  to  the  mortgagee ;  it  has 
been  held,  that  the  law  presumes  such  payment  to  be  made 
on  account  of  the  mortgage,  and  tlurows  the  burden  of  proof 
upon  those  who  allege  the  contrary.^  Thus,  if  a  creditor, 
holding  several  claims  against  his  debtor,  takes  from  him  a 
mortgage  made  to  the  debtor  by  a  third  person,  as  security 
for  one  of  the  claims,  which  mortgage  it  is  agreed  that  the 
debtor  shall  pay  ;  and  he  afterwards  makes  a  payment,  to  be 
applied  to  the  debt  thus  secured  ;  such  payment  is  pro  tanto 
a  discharge  of  the  mortgage,  and  the  creditor  cannot  after- 
wards apply  it  to  the  other  claims,  and  enforce  the  mortgage 
in  full  against  the  mortgagor.'^  But,  after  such  payment,  the 
creditor  having  procured  from  the  debtor  other  security  for 
the  debts  generally,  but  less  than  the  amount  of  his  debts, 
without  that  secured  by  mortgage,  and  the  debtor  having 
absconded,  held,  the  mortagor  could  not  claim  to  have  this 
security  applied  to  his  mortgage,  in  preference  to  the  other 
debts.4 

38  a.  Where  a  mortgage  had  been  foreclosed,  and  the 
mortgagee  had  two  executions  in  his  favor,  one  upon  the 
mortgage,  the  other  upon  a  general  judgment  for  the  same 
debt,  and  ordered  the  whole  property  to  be  sold  upon  the 
latter ;  held,  the  proceeds  of  the  sale  should  be  applied  upon 
the  mortgage  debt.^ 

38  b.  Where  funds  were  put  in  the  hands  of  a  person,  by 
one  of  several  interested  in  procuring   the  discharge  of  a 

1  Boston  Iron  Co.  r.  Kiny,  2  Cush.  ^  Xcw  York  Life,  &c.  v.  Howard,  2 

400.  Sandf.  Cha.  183. 

-  Tharp  r.  Feltz,  6  B.  Mon.  6.     See  ■*  Ibid.  183. 

Williams  v.  Tliurlow,  31  Maine,  392.  5  Winter  v.  Garrard,  7  Geo.  183. 

VOL.  I.  40 


470  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

mortgage,  to  be  applied  to  that  purpose,  and  he  agreed  so  to 
apply  them,  the  others  agreeing  to  furnish  him  with  the  re- 
mainder of  the  necessary  funds,  but  failing  to  do  so;  held, 
those  failing  to  perform,  on  their  part,  could  not,  by  a  bill  in 
equity,  compel  such  person  to  apply  the  funds  belonging  to 
others  to  the  discharge  of  such  mortgage.^ 

38  c.  Mortgage,  without  any  accompanying  obligation,  for 
the  payment  of  a  sum  of  money  in  ten  years,  with  interest 
in  three  instalments,  to  be  paid  in  three,  six,  and  nine  years, 
each  instalment  to  be  one  year's  interest  of  the  whole  sum. 
It  was  also  provided,  that  the  mortgagor  might  pay,  at  any 
time  within  the  ten  years,  such  portions  of  the  mortgage 
money  as  he  shall  see  fit.  A  payment  having  been  made 
generally,  more  than  two  years  before  the  first  instalment  of 
interest  became  due,  and  exceeding  the  first  instalment; 
held,  it  must  be  applied  to  the  principal.^ 

39.  Mortgage  to  a  banking  company,  to  secure  sums  then 
due  and  all  sums  thereafter  to  become  due  from  the  mort- 
gagor to  them,  on  any  banking  or  other  account,  "  so  as  the 
whole  amount  of  principal  moneys  to  be  ultimately  recov- 
ered or  recoverable  by  virtue  of  that  security,  should  not  ex- 
ceed the  sum  of  £5,800,  together  with  interest,"  with  the 
addition  of  a  power  of  sale.  The  mortgagor  built  three 
houses  upon  the  land,  which  were  successively  sold  to  dif- 
ferent purchasers,  and  the  prices  paid  to  the  company,  who 
credited  the  mortgagor  with  them  in  his  account.  Held, 
these  sums  were  recovered  by  the  company  by  virtue  of  the 
mortgage  security,  and,  so  far  as  they  were  applicable  as 
principal  moneys,  must  be  considered  as  received  in  dis- 
charge of  the  sum  of  j£  5,800,  and  not  on  general  account.^ 

40.  Mortgage  to  secure  $3,000,  part  of  a  debt  of  $10,000. 
The  mortgagor  made  sundry  payments,  which  were  credited 
in  account,  generally,  neither  party  having  directed  any  spe- 
cific application  of  them.      The  equity  of  redemption  was 

1  Iloldcn  V.  Pike,  24  Maine,  427.  »  Johnson   v.  Bourne,  2  Y.  &  Coll. 

2  Davis  V.  Fargo,  1  Ciari<,  470.  268. 


CH.  XVII.]  PAYMENT,  RELEASE,   ETC.  471 

seized  on  execution,  appraised  at  $1,  and  set  off  to  the  judg- 
ment creditor,  subject  to  the  mortgage.  Upon  a  bill  for 
foreclosure,  brought  by  the  mortgagee,  the  creditor  claimed 
that  the  payments  should  be  applied  to  the  mortgage,  and 
not  the  other  part  of  the  plaintiff's  debt.  Held,  no  such  ap- 
plication should  be  made,  as  the  effect  would  be  to  give  the 
premises  to  the  creditor  discharged  of  the  mortgage  to  the 
extent  of  the  payment,  leaving  the  execution  in  full  force.^ 

41.  A  mortgagee  refused  to  receive  a  partial  payment  on 
the  mortgage,  but  consented  to  take  the  sum  offered,  and 
hold  it  till  payment  of  the  balance,  and  then  apply  the  whole 
to  the  mortgage  ;  but  really  applied  the  sum  paid  to  his  own 
use.  Held,  on  a  bill  to  foreclose,  this  sum  should  be  applied 
to  the  mortgage,  as  of  the  time  when  it  was  received  and 
used.2 

42.  Two  persons  held  a  mortgage,  as  trustees,  upon  an 
undivided  half  of  certain  real  estate,  and  one  of  them,  in  his 
own  right,  a  subsequent  mortgage  upon  the  same  half.  In 
a  suit  for  partition  between  the  owners,  a  sale  was  ordered 
and  made  ;  neither  the  order  nor  the  conditions  of  sale  re- 
ferring to  any  incumbrance.  The  second  mortgagee  was 
present  at  the  sale,  agreed  that  the  property  should  be  sold 
free  from  incumbrance,  knew  that  the  purchaser  had  notice 
of  this  agreement,  and  that  the  mortgage  was  to  be  cancelled, 
and  received  one  half  the  proceeds,  being  the  mortgagor's 
share.  He  applied  a  part  of  the  money  to  the  payment  of 
the  second  mortgage  in  full,  and  the  balance  to  the  first, 
leaving  a  portion  of  it  due.  The  amount  received  by  him 
would  have  paid  the  first  mortgage  in  full,  and  a  part  of  the 
second.  Held,  parol  evidence  was  admissible  of  the  facts 
above  stated,  and  the  first  mortgage  was  satisfied.^ 

43.  In  a  suit  to  foreclose  a  mortgage,  brought  after  the 
mortgagee's  death,  the  mortgagor  cannot  rely  upon  debts 
due  him  from  the  mortgagee,  as  payments  on  the  mortgage.^ 

1  Chester  v.  Wiicelwright,  15  Conn.        ^  Rogers  v.  Rogers,  1  Halst.  Ch.  32. 
562.  *  Green  v.  Storm,  3  Sandf.  Cha.  305. 

^  Toll  V.  Hillcr,  11  Paige,  228. 


472  THE   LAW  OF  MORTGAGES.  [CH.  XVII. 

So  it  has  been  held,  that  the  devisee  of  an  estate  in  mort- 
gage cannot  set  off  an  arrear  of  interest,  due  at  the  death  of 
the  mortgagor,  against  the  arrears  of  interest  due  upon  a 
legacy  from  the  mortgagee  to  the  mortgagor  for  life,  and  not 
received  by  the  mortgagor,  who  was  an  executor  of  the  mort- 
gagee. This  decision  was  made  upon  the  grounds,  that  the 
case  was  to  be  regarded  as  it  stood  at  the  death  of  the  mort- 
gagor, that  the  mortgage  debt  still  subsisted,  and  an  adjust- 
ment could  take  place  only  by  a  process  in  court ;  that,  until 
such  adjustment,  the  debts  might  be  separately  assigned ; 
and  if  the  mortgagor  had  sold  the  estate,  subject  to  the  mort- 
gage, the  purchaser  could  not  have  claimed  such  a  set-ofF.' 

44.  If  the  owner  of  the  equity  delivers  to  the  owner  of 
the  mortgage  specific  articles,  to  be  applied  in  payment,  but 
afterwards  settles  the  account,  takes  a  note  for  the  property 
delivered,  and  negotiates  it ;  the  agreement  thus  to  apply  the 
property  is  hereby  rescinded.^ 

45.  The  plaintiff  was  the  holder  of  four  notes,  amounting 
to  $1,115,  indorsed  by  the  defendant  for  the  accommodation 
of  the  maker.  The  notes  being  due  and  the  maker  indebted 
to  the  plaintiff  on  other  accounts,  amounting  in  the  whole  to 
$6,137,  he  gave  the  plaintiff  a  new  note  secured  by  mort- 
gage, but  the  original  demands  were  not  extinguished,  nor 
the  old  notes  and  evidences  of  debt  given  up ;  and  it  was 
agreed  that  they  should  not  be  cancelled,  except  upon  cer- 
tain conditions  which  were  never  fulfilled.  The  defendant 
having  become  absolutely  liable,  the  plaintiff  called  upon 
him  for  payment  of  the  notes  indorsed  by  him,  and  the  de- 
fendant thereupon  gave  the  plaintiff  a  mortgage  as  additional 
security  for  the  notes.  Tlie  mortgage  given  by  the  maker 
was  then  foreclosed,  and  the  premises  sold,  yielding,  after 
payment  of  costs,  only  $2,818.  The  plaintiff  applied  this 
sum  to  other  debts  secured  by  the  mortgage,  and  not  to 
the  indorsed  notes.  The  plaintiff  then  brings  a  bill  of  fore- 
closure for  the  notes  against  the  defendant.     Held,  the  plain- 

1  Tcttat  V.  Ellis,  9  Vcs.  563.  ^  Doming  v.  Comings,  11  N.  II.  474. 


CH.  XVII.]  PAYMENT,  RELEASE,  ETC.  473 

tiff  had  a  right  thus  to  apply  the  moneys  received,  and  the 
defendant  could  not  claim  to  have  them  applied  pro  rata^ 
upon  all  the  debts  which  made  up  the  note  and  mortgage  of 
$6,137;  and  that  the  defendant  was  not  entitled  to  a  de- 
duction from  the  amount  due  on  his  mortgage  to  the  plain- 
tiff, on  account  of  the  moneys  received  by  the  plaintiff.^ 

46.  Payment  of  a  mortgage  may  be  proved  or  disproved 
by  facts  and  circumstances,  as  well  as  by  direct  evidence.  It 
is  said:  —  "A  mortgage, being  considered  and  treated  merely 
as  a  security  for  the  payment  of  money,  or  the  performance 
of  some  other  act,  is  simply  a  chose  in  action  extinguish  able 
by  a  parol  release,  which  equity  will  execute  as  an  agreement 
not  to  sue,  or  by  turning  the  mortgagee  into  a  trustee  for  the 
mortgagor  ;  provided  it  proceeds  upon  a  sufficient  considera- 
tion. Such  a  release  or  agreement  may  be  established  pre- 
sumptively, by  showing  declarations  and  acts  of  the  parties 
inconsistent  with  an  averment  of  the  continued  existence  of 
the  mortgage,  and  repugnant  to  the  rights  and  liabilities 
created  by  it,  as  well  as  by  express  proof.  It  is  for  a  jury 
under  proper  directions  to  determine  the  degree  of  weight 
that  ought  to  be  accorded  to  the  facts  proved."  ^  Thus  in  an 
action  for  foreclosure,  the  tenant,  for  the  purpose  of  proving 
payment  of  the  mortgage  debt,  offered  evidence  to  show,  that 
for  several  years  after  the  date  of  the  mortgage  the  mortgagor 
occasionally  worked  for  the  demandant.  Held,  for  the  pur- 
pose of  rebutting  this  evidence,  the  demandant  might  prove 
that  the  mortgagor  was  poor,  and  dependent  on  his  earnings 
for  the  support  of  himself  and  his  family,  and  that  the 
demandant  was  accustomed  to  pay  all  his  laborers  at  short 
and  stated  periods.^  So,  if  a  mortgagor  deliver  to  the  mort- 
gagee specific  articles,  to  be  applied  in  discharge  of  the  debt ; 
it  may  be  shown  that  he  afterwards  settled  the  account,  took 
a  negotiable  note  for  the  balance  due,  and  negotiated  it,  and 
thereby  rescinded  the  contract,  so  as  to  preclude  himself  from 

1  The  Stamford,  &c.  v.  Benedict,  15  ^  Waugli  v.  Rilev,  8  Met.  290;  Mor- 
Conn.  437.  gan  i-.  Davis,  2  Har.  &  McU.  17,  18. 

-  Per  Bell,  J.,  Ackla  r.  Ackla,  6  Barr, 
230,231. 

40* 


474  THE   LAW   OF   MORTGAGES.  [CH.   XVII. 

setting  it  up  in  defence  to  a  suit  on  the  mortgage,  as    a 
redemption  or  payment.^ 

46  a.  The  retaining  of  mortgaged  property  after  the  law- 
day  has  passed  does  not  authorize  a  presumption  of  pay- 
ment.2 

47.  Where  a  mortgage  itself  shows  no  payment  of  interest, 
the  presumption  is,  that  none  has  been  made.^ 

48.  The  fact,  that  advances  by  a  father-in-law  to  his  son-in- 
law  had  been  made  for  a  long  time,  and  were  not  evidenced 
by  any  writing,  might  authorize  a  jury  to  presume  that  they 
were  not  meant  to  be  repaid,  and  therefore  no  consideration 
for  a  mortgage  ;  but  do  not  raise  a  presumption  of  law  that 
the  mortgage  had  been  satisfied.* 

49.  If  a  tenant  in  fee  simple  or  fee  tail  pay  off  a  charge  on 
the  estate,  the  payment  is  primd  facie  presumed  to  be  for  the 
benefit  of  the  estate.  If  a  tenant  for  life  does  it,  he  is  primd 
facie  entitled  to  the  charge  for  his  own  benefit.     But  in  either 

case  the  presumption  may  be  rebutted.^ 

49  a.  The  possession,  by  the  mortgagor,  of  the  notes  secured 
by  the  mortgage,  is  prima  facie  evidence  that  they  have  been 
paid  by  him.  But  the  presumption  may  be  rebutted  by 
evidence  that  the  mortgagee,  supposing  erroneously  that  the 
mortgage  was  foreclosed,  and  that  the  mortgagor  was  entitled 
to  them,  delivered  them  to  him  without  payment ;  this  not 
being  a  mistake  of  laivJ"  So,  the  presumption,  arising  from 
such  possession  by  the  mortgagor  or  those  claiming  under 
him,  is  a  presumption  of  fact  and  not  of  law,  and  will  be  rebut- 
ted by  any  other  evidence.  Thus,  in  a  suit  by  the  assignee 
of  the  mortgage  against  a  mortgagor  in  possession,  the  pro- 
duction of  the  mortgage  notes  by  the  tenant  does  not  raise 
such  presumption,  no  discharge  being  shown,  and  the  facts 
strongly  tending  to  prove  that  the  notes  could  not  have  been 
paid  to  a  lawful  holder,  and  an  assignee  of  the  mortgage.'^ 

1  Deining  v.  Comings,  11  N.  II.  474.  ^>  Cootc,  4G4.    'Scc   Brooks   v.    Har- 

2  Steele  V.  A(liirn.s,  21  Ala.  534.  wood,  8  Tick.  497. 

8  Olmsted  V.  Elder,  2  Sandf.  Hiij..  .32.').  ''  Smith  v.  Smijli,  15  N.  II.  55. 

*  Melsuacs  v.  llobbs,  8  Dana,  2G8.  '  Croekcr  r.  Thompson,  3  Met.  224. 


CH.   XVII.]  PAYMENT,  RELEASE,  ETC.  475 

49  b.  If  a  suit  for  foreclosure  has  been  commenced,  and 
dismissed  for  want  of  prosecution,  and  the  dismissal  long 
acquiesced  in,  satisfaction  of  the  mortgage  will  be  presumed.^ 

50.  Both  in  law  and  equity,  parol  evidence  is  admissible  of 
the  discharge  of  a  mortgage  debt,  and  thereby  of  the  mort- 
gage itself.2  It  is  held,  that  the  provision  of  the  statute  of 
frauds,  requiring  a  writing  to  pass  any  interest  in  real  estate, 
does  not  apply  to  conditional  estates,  held  by  way  of  security, 
which  are  merely  incident  to  the  debts  secured,  and  foUow  as 
a  matter  of  course  any  discharge  of  such  debts.  In  law,  the 
interest  in  the  land  is  thereby  defeated ;  in  equity,  a  trust 
arises  for  the  mortgagor,  which  also,  being  implied,  is  within 
the  exception  of  the  statute  of  frauds.  Payment  of  the  debt 
is  held  a  good  defence  to  an  ejectment  upon  the  mortgage, 
more  especially  in  the  case  of  ancient  mortgages.  The  law 
allows  proof  of  any  declarations,  acts,  or  circumstances, 
inconsistent  with  a  continuance  of  the  lien.  So,  where  an 
action  is  brought  upon  a  mortgage  against  one  who  is  not  a 
party  to  it,  and  certain  indorsements  appear  upon  the  mort- 
gage note,  the  plaintiff  may  offer  parol  evidence  to  explain 
them,  or  to  show  that  they  were  made  by  mistake,  unless  at 
the  time  of  purchasing  the  property  the  defendant  had  notice 
of  such  indorsements,  or  made  inquiry  of  the  plaintiff  as  to 
the  amount  due  on  the  mortgage.  Such  indorsements  are 
mere  receipts.^ 

51.  A  mortgagor  went  to  the  mortgagee's  house  with  a 
box  containing  the  bond  and  mortgage,  and  offered  them  to 
him ;  but  he  put  back  the  deeds,  saying,  "  take  back  your 
writings,  I  freely  forgive  you  the  debt,"  and  then,  speaking 
to  the  mortgagor's  mother  who  was  present,  said  :  "  I  always 
told  you  I  would  be  kind  to  your  son ;  now  I  am  as  good  as 
my  word."  Held,  this  evidence  was  competent  to  prove  a 
discharge  of  the  mortgage.'' 

1  Nelson  v.  Lee,  10  B.  Mon.  495.  v.  Davis,   2  H.  &  McH.   9  ;    Ackla  v. 

2  RiclKirds  V.  Tims,  Barn.  90  ;  1  Tow.     Ackla,  6  Barr,  228. 

143  a;  Wcntz  v.  Dohaven,  1    S.  &  R.         ^  i^icUanicls   v.  Lapliam,  21    Verm. 

312;  Den   v.   Spinnings,  1    Halst.  471;     222. 

Harrison  v.  EWiidgc,  2,  407;  Morgan         *  llicliards  f.  Syms,  Biirnaril.  90. 


476  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

52.  It  has  been  a  subject  of  much  discussion,  what  is  the 
precise  remedy  of  the  mortgagor  to  regain  his  estate,  where 
the  debt  is  paid  after  condition  broken,  and  consequently  the 
legal  title  absolutely  forfeited.  (/) 

53.  Where  the  debt  is  paid  after  breach  of  condition,  it 
was  early  held  in  Massachusetts,^  that  the  only  remedy  of  the 
mortgagor,  to  regain  possession,  was  a  bill  in  equity,  and  an 
action  at  law  would  not  lie.  A  statute  of  that  State  provided 
for  the  discharge  of  a  mortgage,  after  payment,  upon  the 
record ;  thus  implying  that  the  mortgagee  still  retained  the 
legal  title.  Moreover,  a  bill  in  equity  is  regarded  as  an  ade- 
quate and  convenient  remedy,  and  well  adapted  to  do  justice 
to  all  parties ;  at  once  securing  the  rights  of  the  mortgagee, 
and  moderating  the  rigor  of  the  common  law  for  the  benefit 
of  the  mortgagor.  It  is  as  beneficial  to  the  mortgagor  as  a 
suit  at  law,  and  may  sometimes  be  more  so  ;  because,  in  case 
of  a  want  of  evidence  of  payment,  the  mortgagee  may  be  put 
upon  his  oath.  It  is  certainly  more  beneficial  to  the  mort- 
gagee. In  case  of  an  action  at  law  against  him,  he  could 
obtain  no  allowance  for  repairs^  which  depends  either  upon 
express  statute  or  the  rules  of  equity.  The  common  law 
recognizes  no  such  claim,  but  considers  the  mortgagee  as 
absolute  owner. 

54.  The  same  doctrine  has  been  recognized  in  Massachu- 
setts in  the  late  case  of  Cutler  v.  Lincoln.^  So  in  an  action 
for  possession  by  a  mortgagee,  the  tenant  cannot  plead  a 
tender  after  breach  of  condition,  but  before  suit  brought.  Nor 
a  promise  by  the  mortgagee,  that  he   should  hold  the  land 

1  Ilill  ".  Payson,  3  Mass.  5G0  ;  Par-  23  Cugij.  128. 

sons  V.  Welles,  17  Mass.  419;  Sherman 
V.  Abbot,  18  Pick.  448. 


(/)  By  St.  7  Geo.  2,  cli.  20,  a  mortgagee  cannot  maintain  ejectment  after 
payment  or  tender  of  llie  debt  and  cost ;  but  is  required  to  reassign,  and 
give  up  all  deeds,  &c.  1  Tow.  1G8.  After  discharge  of  a  debt  secured  by 
mortgage,  the  mortgagee  becomes  a  trustee  for  the  mortgagor,  and  a  court 
of  equity  will  enforce  a  reconveyance.     Upham  v.  Brooks,  2  W.  &  M.  407. 


CH.  XVII.]  PAYMENT,   RELEASE,  ETC.  477 

free  of  the  mortgage.'  So  it  is  held  in  Connecticut,^  that 
where  payment  is  made  after  the  law-day^  neither  the  mort- 
gagor nor  his  assignee  can  maintain  ejectment  against  the 
mortgagee,  without  obtaining  the  legal  title ;  nor  can  the 
mortgagor  defend  against  an  ejectment  by  the  mortgagee  or 
his  assignee,  [g)  So  it  is  held  in  New  York,^  that  tender  of 
the  debt  after  breach  of  condition  does  not  operate  as  a  dis- 
charge of  the  mortgage  ;  [h)  although,  where  a  mortgagee  has 
received  an  equitable  satisfaction,  if  he  afterwards  attempt  to 
set  up  the  mortgage  as  a  subsisting  lien,  satisfaction  may  be 
decreed,  so  that  it  may  be  cancelled  on  the  record."^ 

55.  So  in  Mississippi,  where  there  has  been  a  payment, 
but  no  satisfaction  on  record,  or  other  extinguishment  of  the 
mortgage,  a  sale  upon  execution  of  the  mortgagor's  estate 
will  pass  only  an  equitable  title,  to  be  enforced  in  a  court  of 
equity,  but  not  by  ejectment.^ 

1  Maynard  v.  Hunt,  5  Pick.  240.  *  Kellogg  i?.  Wood,  4  Paige,  578.  See 

^  Doton   V.   Russell,    17  Conn.  146;     Jackson  v.  Craft,  18  Johns.  110. 

Cross  I'.  Robinson,  21  Conn.  379.  ^  Wolfe  v.  Dowcll,  13  Sm.  &  M.  103. 

'  Post  I'.  Arnot,  2  Denio,  344.     Mer- 

ritt  V.  Lanabert,  7  Paige,  374. 

(^)  In  Connecticut,  in  the  case  of  Smith  v.  Vincent,  15  Conn.  13,  Wil- 
liams, C.  J.,  adverts  to  the  New  York  decisions,  but  considers  the  rule  as 
established  the  other  way  by  the  cases  of  Phelps  v.  Sage,  2  Day,  151,  and 
Roath  V.  Smith,  5  Conn.  136,  which  are  not  controlled  by  Porter  v.  Seeley, 
13  Conn.  564.  This  last  case  he  considers  as  merely  deciding,  that  one  with- 
out shadow  of  title  in  the  debt  or  the  land,  a  mere  stranger,  cannot  protect 
himself  by  a  satisfied  mortgage.  Hence  It  was  decided,  that  the  title  of  a 
mortgagee,  under  a  mortgage,  satisfied  after  forfeiture,  may  be  set  up  as  a 
defence  to  an  action  of  ejectment.  -In  Sage  v.  Phelps,  2  Day,  151,  above 
referred  to,  it  appeared  that  the  plaintiff,  in  an  action  of  ejectment,  claimed 
under  a  mortgage,  and  the  defendant  under  a  subsequent  absolute  deed, 
from  the  same  person.  The  defendant  offered  to  prove,  that,  after  the  expi- 
ration of  the  law-day,  the  whole  mortgage-money  was  paid  to  the  plaintiff's 
satisfaction.     Held,  the  evidence  was  inadmissible. 

(A)  In  The  Farmers',  &c.  v.  Edwards,  26  Wend.  541,  it  was  held,  that  a 
tender  of  the  debt  after  the  day  of  payment  removes  the  lien  of  the  mortgage 
as  effectually  as  a  tender  before  that  day  ;  and  the  mortgagee  if  in  posses- 
sion may  be  ousted  by  the  mortgagor.  So  payment,  though  after  the  day, 
revests  the  title.     Rogers  v,  De  Forest,  7  Paige,  272. 


478  THE   LAW   OF   MORTGAGES.  [cH.  XVII. 

56.  In  New  Hampshire,  in  a  very  recent  case,  it  is  decided 
that  payment  of  the  debt,  or  performance  of  the  duty,  se- 
cured by  the  mortgage,  discharges  the  interest  of  the  mort- 
gagee, and  revests  the  estate  fully  in  the  mortgagor.'  So,  in 
Maryland,  in  the  case  of  Morgan  v.  Davis,^  it  was  held,  that 
full  payment  of  the  principal  and  interest  due  upon  a  mort- 
gage, and  the  receipt  thereof  in  satisfaction  by  the  mortgagee, 
though  after  the  day  of  payment  mentioned  in  the  mortgage, 
discharged  the  mortgage,  and  defeated  the  estate  of  the 
mortgagee  in  law  and  equity ;  so  that  no  title  under  the 
mortgage  could  afterwards  be  set  up  as  a  defence  to  an 
ejectment  for  the  land.  So,  in  Paxon  v.  Paul,^  which  was 
ejectment  by  a  mortgagee  against  an  assignee  of  the  mort- 
gagor ;  it  appeared,  that  the  debt  and  interest  had  been  paid 
in  continental  bills,  which  were  received  by  the  mortgagee 
in  discharge  of  the  mortgage,  and  that  the  original  mort- 
gage and  bond  were  delivered  up,  with  a  receipt  in  full 
thereon  ;  but  that  no  release  of  the  lands  had  been  executed. 
Judgment  for  the  defendant. 

56  a.  Mortgage,  to  secure  repayment  of  a  legacy,  if  the 
payment  should  prove  invalid,  judgment  being  rendered  in 
favor  of  such  payment ;  held,  the  mortgage  was  functus 
officio,  and  could  not  be  enforced  by  an  assignee.'^ 

57.  The  same  general  doctrine  is  held  by  the  Court  in 
Ohio,  with  reference  to  the  discharge  or  extinguishment  of  a 
mortgage :  "  If  we  look  at  the  true  nature  of  the  -contract, 
and  view  the  mortgage  as  it  really  is,  a  mere  security  for  a 
debt ;  if  the  debt  is  the  principal  and  the  mortgage  the  inci- 
dent ;  there  certainly,  as  it  appears  to  me,  can  be  no  good 
reason  why  a  discharge  of  the  debt  should  not  be  held  to-  be 
a  discharge  of  the  mortgage,  and  put  an  end  to  the  interest 
of  the  mortgagee  in  the  land.  Such  was  said  by  this  Court 
to  be  the  case  in  Hill  v.  West,  8  Ohio,  222,  and  we  are  dis- 
posed to  adhere  to  the  opinion  therein  expressed.     We  are 

1  Furl)ush   V.    Goodwin,    Law    Hep.        ^  3  Ilarr.  &  McII.  399. 
1855,  Marc!i,  p.  650.  *  llickard  v.  Talbird,  Ivicc,  Ch.  158. 

■^  2  liar.  &  McII.  17. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  479 

aware  that  this  is  contrary  to  the  old  doctrine  upon  the  sub- 
ject, but  we  believe  it  is  in  conformity  with  reason,  and 
with  modern  decisions.  4  Kent  Com.  193.  Nor  does  this 
opinion  conflict  with  the  statute  of  the  22d  of  February, 
1831,  pointing  out  the  manner  in  which  satisfaction  of  a 
mortgage  may  be  entered."  ^  So,  in  Kentucky,  in  the  case 
of  Breckenridge  v.  Ormsby,^  Eobertson,  J.,  says  :• —  "A  pay- 
ment of  the  mortgage  debt  extinguishes  the  mortgage,  at 
law,  as  well  as  in  equity.  It  is  not  doubted  that  a  payment 
of  the  debt,  before  forfeiture,  extinguishes  the  mortgage  at 
law.  But  there  are  many  learned  Judges  who  doubt  whether 
a  payment  after  forfeiture  will  have  the  same  effect.  On 
this  point  there  is  great  diversity  in  the  cases  reported,  as 
well  as  in  the  "  auctoritas  'prudentumP  But  ever  since  the 
days  of  Hardwick,  the  opinion  has  grown  more  and  more 
prevalent,  that  a  payment,  at  any  time  before  the  title  has 
been  passed  to  the  mortgagee  by  a  decree  or  sale,  will  per  se 
at  law,  as  it  will  in  equity,  divest  the  mortgagee  of  all  title." 
58.  In  the  case  of  Hill  v.  Payson,-^  above  cited,  it  seemed 
to  be  conceded  by  the  Court,  as  an  inference  from  the  doc- 
trine therein  established,  or  as  the  converse  of  that  doctrine ; 
that  after  payment  the  mortgagee  rryght  recover  the  land  by 
an  action  at  law  from  the  mortgagor ;  notwithstanding  the 
apparent  hardship  and  injustice  of  such  a  proceeding.  But 
in  the  much  later  case  of  Wade  v.  Howard,  the  Court  re- 
mark,* that  this  concession  was  inadvertently  made,  and 
distinctly  decide,  that  the  mortgagee  cannot  thus  recover, 
because  the  only  judgment,  whidi  the  law  in  such  case 
would  authorize,  is  a  conditional  one,  that  a  writ  of  posses- 
sion shall  issue,  unless  the  debt  is  paid  within  a  certain  time  ; 
which  under  the  circumstances  would  be  absurd  ;  it  having 
been  already  paid. 

1  Per  Hitchcock,  J.,  Perkins  v.  Dib-  *  11  Pick.  297 ;  ace.  Hadlock  v.  Bul- 

ble,  10  Ohio,  440.  finch,  31  Maine,  246;  Webb  v.  Flan- 

-  1  Mar.  257,  258.  ders,  32,  175. 
3  3  Mass.  560. 


480  THE  LAW   OF   MORTGAGES.  [CH.  XVII. 

58  a.  So,  in  Maine,  no  action  can  be  sustained  on  a  mort- 
gage, after  the  mortgage  debt  has  been  paid.^ 

59.  Judge  Story  says  :  ^  —  "  Unless  the  mortgagor  can 
resist  a  recovery  by  the  mortgagee  at  law,  he  may  be  turned 
out  of  possession  when  nothing  is  due  on  the  mortgage, 
against  the  plainest  principles  of  justice,  and  be  driven  by  a 
circuity  of  action  to  -enforce  his  acknowledged  rights.  If  a 
cent  only  be  due  on  the  mortgage,  the  mortgagee  can  obtain 
no  judgment  at  law  in  his  suit,  but  a  conditional  one,  and 
no  possession  at  all  if  that  cent  is  paid ;  and  yet,  if  nothing 
is  due,  his  rights  are  absolute,  and  he  is  entitled  to  an  un- 
conditional surrender  of  the  possession.  I  confess  I  do  not 
understand  the  reasoning  upon  which  such  a  distinction  can 
be  maintained."  (i) 

60.  It  has  been  held,  however,  in  Massachusetts,  that  an 
action  iox  forcible  detainer  may  be  maintained  upon  a  mort- 
gage, which  was  paid  after  condition  broken.^ 

61.  A  mortgage  may  be  extinguished,  not  only  by  pay- 
ment of  the  debt,  but  by  a  subsequent  direct  transfer  of  the 
estate  itself  from  one  to  the  other  of  the  parties.  Of  course, 
this  result  follows  from  an  express  relinquishment  of  title  by 
the  mortgagee  ;  but  it  ijiay  equally  be  produced,  by  a  con- 
veyance or  release  from  the  mortgagor  to  the  mortgagee,  the 
effect  of  which  is  to  vest  in  the  latter  an  interest  inconsistent 
with,  or  repugnant  to,  his  claim  under  the  mortgage.  Thus 
the  mortgagor  may  convey  his  estate  to  the  mortgagee,  after 
maturity  of  the  debt,  in  satisfaction  thereof,  unless  the  trans- 


1  Williams    v.   Tliurlow,   31    Maine,        '^  Gray  v.  Jonks,  3  Mas.  527. 
392.  3  Uoward  v.  Howard,  3  Met.  557. 


(/)  The  docti-ine  of  the  text  is  said  to  be  adopted  in  Maine,  Massachu- 
setts, Marjlaiid,  New  York,  Vermont,  New  Jersey,  Pennsylvania,  and 
Ohio.  But  it  is  lu'ld  otherwise  in  Connecticut,  Kentucky,  and  Virginia. 
2  Greenl.  Cruise,  122,  n. 


CH.  XVII.]  PAYMENT,   RELEASE,    ETC.  481 

action  be  fraudulent.^  But,  it  is  said,  that  equity  looks  with 
suspicion  on  such  a  transaction,  in  reference  to  an  extin- 
guishment of  the  mortgage.'-^ 

62.  A  quitclaim  deed  from  mortgagor  to  mortgagee  is 
held  to  be  a  merger  of  the  mortgage  ;  unless  intention,  inca- 
pacity to  elect,  or  interest  in  the  mortgagee  to  keep  the  ^^- 
curity  alive,  prevent  such  result."  A  quitclaim  deed  of  part 
of  the  mortgaged  premises  to  the  mortgagee  or  his  assignee, 
does  not  wholly  extinguish  it,  but  at  most  for  only  a  propor- 
tional part  of  the  debt.*  So,  although  the  assignee's  title  to 
the  half  in  question  was  derived  from  one  who  had  purchased 
it  from  the  mortgagor,  and  given  back  an  agreement  to  pay 
off  the  mortgage ;  especially  if  the  assignee  had  no  notice 
of  the  agreement.^  So,  a  mortgagee,  by  the  purchase  of  a- 
part  of  the  mortgaged  premises  in  payment  of  a  debt  not 
secured  thereby,  does  not  prejudice  his  mortgage  in  respect 
to  the  residue.^ 

62  a.  Two  tenants  in  common  mortgaged  to  two  other 
persons,  and  their  equity  of  redemption  was  afterwards  sold 
on  execution.  The  mortgagees  recovered  a  judgment  for 
possession,  and  subsequently  one  of  them  transferred  all  his 
title  to  the  execution  purchaser,  who  conveyed  one  half  of 
the  right  in  equity,  sold  on  execution,  to  another  person. 
Subsequently,  possession  was  delivered  to  the  mortgagees 
upon  their  execution.  Afterwards,  the  execution  purchaser 
conveyed  to  the  mortgagee,  who  had  not  parted  with  his 
interest,  all  his  title,  thus  uniting  in  the  latter  the  rights  of 
mortgagor  and  mortgagee  of  half  the  land.  This  convey- 
ance was  treated  by  the  grantee  of  the  execution  purchaser 
as  payment  of  half  the  debt ;  and,  having  tendered  the  bal- 
ance, he  brings  a  bill  in  equity  to  redeem  against  the  mort- 
gagee last  referred  to.     Held,  as  the  defendant  purchased 

1  Sliclton  I'.  Hampton,  6  Ired.  216;  *  Klock  v.  Kronkhite,  1  Hill,  107; 
Harrison  v.  .The  Trustees,  &c.,  12  Mass.    James  v.  MoreV,  2  Cow.  246. 

465.  s  Ibid. 

2  Hitchcock  V.  U.  S.  &c.,  7  Ala.  386.  ^  Stover  v.  Harrington,  7  Ala.  142. 
8  Waugh  V.  IJilcy,  8  Met.  290. 

VOL.    I.  41 


482  THE   LAW   OF  MORTGAGES.  [CH.  XVII. 

only  a  moiety  of  the  equity  of  redemption,  only  a  moiety  of 
the  mortgage  was  extinguished ;  that  the  recovery  of  a 
judgment  upon  the  mortgage  by  the  mortgagees,  being  pre- 
vious to  the  defendant's  acquiring  any  title  to  the  equity, 
did  not  indicate*  his  intention  as  to  an  extinguishment  or 
otherwise ;  and,  as  the  defendant  would  gain  nothing  by 
keeping  alive  a  moiety  of  the  mortgage,  it  was  held  to  be 
extinguished.^ 

62  b.  A  devisee  in  trust,  with  power  to  sell,  for  valuable 
consideration  paid  by  a  mortgagee,  "  devised  and  forever 
quitclaimed  all  the  estate,  right,  title,  &c.,  at  law  as  well  as 
in  equity,  in  possession  as  well  as  in  expectancy,"  describing 
the  premises.  The  condition  had  been  broken.  Held,  the 
equity  of  redemption  passed.^ 

62  c.  But  it  was  further  held,  that  the  mortgagee  might 
still  maintain  a  bill  to  foreclose,  in  order  to  quiet  his 
title.3 

63.  Where  the  heirs  of  a  mortgagee  were  in  possession  of 
an  ancient  deed,  releasing  the  equity  of  redemption,  such 
deed,  even  though  not  recorded,  was  held  to  preclude  a  re- 
demption by  a  subsequent  purchaser.* 

64.  Where  a  mortgagee  purchases  and  takes  a  deed  of  the 
mortgaged  premises,  paying  a  part  of  the  consideration  by 
the  mortgage  note ;  such  mortgage  is  thereby  paid  off  and 
extinguished,  in  law  and  equity,  although  uncancelled  on 
the  record.^     Spalding,  J.,  dissenting. 

65.  A  conveyance  from  the  mortgagor  to  the  mortgagee 
may  enure  to  the  benefit  of  a  previous  grantee  of  the  former. 
Thus  a  mortgagor,  having  conveyed  the  land  to  a  third  per- 
son, afterwards  conveyed  it  to  the  mortgagee,  who  entered 
satisfaction  of  the  mortgage.  Held,  the  former  grantee  thus 
gained  the  absolute  legal  title.^ 

66.  A  mortgage  will  not  be  extinguished  by  the  mort- 

1  rrccman  v.  raul,  3  Grccnl.  2G0.  *  Mallory  v.  Aspinwall,  2  Day,  280. 

2  Hitchcock  V.  U.  S.  &c.,  7  Ala.  .'586.         ^  Jennings,  &c.   v.  Wood,   20  Ohio, 
**  lb.   contra,  Ormsby   v.   Phillips,  4     261. 

Dana,  2;J2.  «  White  v.  Todd,  10  Mis.  189. 


CH.  XVII.]  PAYMENT,  KELEASE,  ETC.  483 

gagee's  receiving  an  absolute  conveyance,  unless  the  two 
titles  become  thereby  united  in  him  at  the  same  time. 

67.  In  1821,  Reuben  Sherman  conveyed  the  demanded 
premises  to  Reuben  Sherman,  junior,  taking  back  a  mort- 
gage for  the  whole  or  a  part  of  the  price.  August  25,  1828, 
the  mortgagor  conveyed  to  the  demandant ;  the  deed  being 
recorded  on  the  30th  of  August.  Before  this  conveyance, 
Sherman,  senior,  mortgaged  to  the  tenant,  but  the  mortgage 
was  not  recorded  till  after  registration  of  the  demandant's 
deed.  Subsequently,  the  tenant  and  Sherman,  senior,  con- 
veyed to  Samuel  Sherman,  and  Samuel  to  the  tenant. 
Held,  as  the  mortgage  from  Sherman,  junior,  to  Sherman, 
senior,  was  recorded  before  the  conveyance  to  the  demand- 
ant, this  conveyance  passed  to  him  only  the  equity  of  re- 
demption ;  that  the  conveyance  from  the  tenant  and  Sher- 
man, senior,  to  Samuel,  did  not  operate  as  an  extinguishment 
of  the  mortgage  from  Sherman,  junior,  because  Samuel  did 
not  have  his  title  as  mortgagor,  which  was  then  vested  in 
the  demandant.  And  if  this  conveyance  to  Samuel  did  ex- 
tinguish the  mortgage  from  Sherman,  senior,  to  the  tenant, 
it  was  immaterial,  for  then  Samuel  took  the  legal  estate 
from  the  other  grantor,  and  the  tenant  then  derived  the  legal 
estate  from  Samuel,  and  therefore  this  action  could  not  be 
maintained,  the  demandant  acquiring,  by  payment  of  the 
debt,  a  mere  equitable  title.^ 

68.  In  Pratt  v.  Bank,  &c.,^  Whiton  mortgaged  to  Hins- 
dell,  who  assigned  to  the  plaintiffs.  Afterwards  the  mort- 
gagor, by  a  qiftitclaim  deed,  released  to  the  mortgagee,  and 
the  mortgagee  mortgaged  to  the  defendants.  Upon  a  bill  for 
foreclosure,  held,  the  mortgage  title,  by  these  transactions, 
had  not  merged  in  the  fee.  There  can  be  no  merger,  unless 
the  two  estates  unite  in  one  and  the  same  person,  and  in  the 
same  right.  Upon  the  assignment  of  the  mortgage  to  the 
plaintiffs,  they  became  mortgagees,  and  Whiton  mortgagor, 
and  Hinsdell  had  no  estate  of  any  kind  in  the  land.     When 

1  Sherman  v.  Abbot,  18  Tick.  448.  -  10  Verm.  293. 


484  THE  LAW  OF  MORTGAGES.        [CH.  XVII. 

the  mortgagor  assigned  his  equity  to  Hinsdell,  the  latter 
acquired  his  rights,  the  plaintiffs  having  those  of  the  mort- 
gagee. As  the  assignment  by  the  mortgagee  to  the  plain- 
tiffs was  prior  to  the  release  by  the  mortgagor  to  him,  the 
estates  of  the  mortgagee  and  mortgagor  never  became  united 
in  the  mortgagee,  and,  not  subsisting  at  any  time  in  one  per- 
son, could  never  unite  and  merge  in  the  fee. 

69.  A  mere  conveyance  to  the  mortgagee  will  not  affect 
the  mortgage,  without  evidence  of  a  delivery  and  a  claim 
under  such  conveyance,  nor  without  the  mortgagee's  assent 
thereto.^ 

70.  Mortgage,  from  an  inhabitant  of  New  Jersey  to  an 
inhabitant  of  New  York,  of  lands  in  the  former  State,  as 
security  for  a  bond.  Subsequently,  the  mortgagor  for  his 
own  purposes  executed  and  caused  to  be  recorded,  in  New 
Jersey,  a  deed  of  the  land  to  the  mortgagee,  to  which  the 
latter  never  assented.  The  mortgagee  having  assigned  the 
bond  and  mortgage,  with  all  his  other  property,  for  the  bene- 
fit of  his  creditors  ;  a  creditor  attached  the  land.  Held,  the 
deed  did  not  extinguish  the  mortgage,  and  the  latter  should 
prevail  over  the  attach ment.^ 

71.  A.  sold  to  B.  with  covenants  for  quiet  enjoyment  and 
against  incumbrances,  and  took  a  mortgage  back  for  the 
purchase-money.  At  the  same  time  there  was  a  judgment 
against  A.,  which  was  a  lien  on  the  premises,  and  under 
which  they  were  sold  and  ultimately  conveyed  to  C.  C,  on 
the  same  day  that  he  took  a  deed  frbm  the  sheriff,  executed 
a  deed  of  release  and  quitclaim  to  B.,  being  at  the  same  time 
the  holder  of  the  mortgage.  Held,  C.  could  not  foreclose  the 
mortgage.-^ 

72.  If  a  debt  is  secured  by  a  mortgage  and  also  by  a 
surety,  the  mortgage  will  not  be  extinguished  by  the  mort- 
gagee's purchasing  the  equity  of  redemption,  with  the  bond 
fide  purpose  of  benefiting  the  surety.* 

1  Wau;4li  v.  llilcy,  8  Met.  2'.) ;  1  llalst.  -  Lon;;strcct  v.  Sliipinan,  1  Halst.  Ch. 
Ch.  4;i.   "  '  -IIJ. 

■•  Woodlniry  i'.  Aikiii.  V-l  111.  039.  '  Culluin  u.  Emanuel,  1  Ala.  (N.S.)  23. 


CH.  XVII.]  PAYMENT,   KELEASE,   ETC.  485 

73.  A  mortgage  will  of  course  be  extinguished  by  a  direct 
release  or  discharge,  which  may  be  in  the  form  of  a  separate 
deed,  or,  as  is  more  commonly  the  case,  written  upon  the 
back  of  the  mortgage  deed  itself,  and  ackno\yledged  and 
recorded  like  other  transfers  of  real  estate. 

74.  A  receipt  in  full  of  the  mortgage  debt  is  an  equitable 
release  of  the  mortgage.^ 

75.  So  a  mortgage,  though  under  seal,  may  be  released  by 
a  parol  agreement,  without  payment.^ 

75  a.  But  where  two  mortgagees  gave  to  the  mortgagor  a 
release,  reciting  payment  in  full  of  the  debt ;  and  the  same  day, 
the  latter  gave  a  mortgage  to  one  of  the  mortgagees  ;  held, 
the  release  could  not  be  explained  by  parol  evidence,  and 
that  an  incumbrance  between  these  two  mortgages  should 
have  priority .3  So  where  a  mortgagee  executes  an  instru- 
ment in  these  words:  —  "This  mortgage  is  discharged,  a 
second  mortgage  having  been  given  of  other  lands  to  secure 
the  same  debt;"  such  instrument  cannot,  affect  the  mort- 
gagee's rights,  unless  he  be  chargeable  with  fraud,  which  is 
affirmatively  proved  against  him.^ 

76.  A  conveyance  from  the  mortgagee  to  the  purchaser  of 
the  equity  of  redemption  concluded  thus,  —  "  meaning  hereby 
to  convey  all  the  right,  title,  and  interest  now  vested  in  me, 
by  virtue  of  any  and  all  conveyances  heretofore  made  to  me 
by  "  the  mortgagors.  Held,  these  words  showed  no  intention 
to  discharge  the  mortgage,  but  the  reverse;^  But,  in  general, 
a  quitclaim  deed  from  the  mortgagee  or  his  assignee  to  a 
purchaser  of  the  equity  of  redemption  extinguishes  the  mort- 
gage.'^ 

77.  A  release  executed  by  A.,  a  cestui  que  trust,  to  B.,  of 
all  claims  or  demands  of  every  nature  which  C,  the  trustee, 
who  is  in  possession  of  the  legal  estate,  has  against  B.,  on 
account  of  a  mortgage  executed  by  B.  to  the  trustees,  is  not 
a  conveyance  of  the  estate  of  C,  and  is  not  therefore  a  com- 

1  Marriott  v.  Handy,  8  Gill,  31.  *  Gates  v.  Adams,  24  Verm.  70. 

2  AVallis  r.  Lonjr,  16  Ala.  738.  ^  jjqoI  v.  Hathaway,  9  Shepl.  85. 

^  Wuollen  r.  Ilillcr,  9  Gill,  185.       •  '^  Jerome  v.  Seymour,  Harring.Ch.357. 

41* 


486  THE  LAW   OF   MORTGAGES.  [CH.  XVII. 

pliance  with  an  agreement  to  convey  the  interest  of  C,  the 
trustee.' 

78.  The  grantee  of  a  mortgagor,  being  about  to  sell,  pro- 
cured from  the  mortgagee  to  the  purchaser,  a  bond,  condi- 
tioned that  the  grantee  should  save  the  purchaser  harmless 
from  all  cost  and  damage  in  consequence  of  any  previous 
incumbrance.  Held,  the  effect  was  to  release  the  land  from 
the  mortgage.^ 

79.  A.  mortgaged  land  to  B.,  and  then  conveyed  the  land, 
subject  to  the  mortgage,  to  C.  C.  conveyed  the  land,  with 
warranty,  to  D.,  and  D.  with  similar  covenants,  to  E.,  having 
first  procured  B.  to  execute  a  bond  to  E.,  conditioned  that  D. 
should  save  E.  harmless  from  any  incumbrance,  the  parties 
understanding  and  intending  that  this  would  discharge  the 
land  from  the  mortgage,  but  would  leave  B.  the  right  to  pur- 
sue his  remedy  against  A.  for  his  debt,  and  also  to  hold  C.  and 
D.  upon  their  warranty,  and  to  prosecute  suits  thereon  in  the 
name  of  E.,  but  for  his  own  benefit.  Held,  the  bond  dis- 
charged the  incumbrance,  and  consequently  released  C.  and 
D.  from  their  covenants,  so  far  as  the  mortgage  was  con- 
cerned, and  that  chancery  could  grant  no  relief.^ 

80.  Where  the  purchaser  of  part  of  a  lot  of  land,  subject 
to  a  mortgage,  paid  the  purchase-money  to  the  mortgagee, 
and  took  a  release  of  his  land  from  the  mortgage ;  held,  that 
portions  of  the  land,  previously  sold,  were  not  thereby  dis- 
charged.* 

81.  A.,  holding  a  mortgage  upon  several  lots  of  land  be- 
longing to  B.,  to  secure  a  debt  of  $900,  executed  a  release  to 
B.  of  all  claims  and  demands  whatever,  in  consideration  of 
the  conveyance  of  a  lot  of  land  valued  at  $200  ;  but  the 
mortgage  debt  was  not  due  at  the  time,  and  the  mortgage 
was  not  delivered  up  or  cancelled.  Held,  the  mortgage  debt 
was  not  afibctcd  by  the  release.^ 

1  Simonton   v.  Gandolfo,  4  Florida,  *  Evcrtson  v.  Ogdcn,  8  Paige,  275. 

209.  ^  Mclntyrc  v.  Williamson,  I  Edw.  Cb. 

•■^  I'roctor  V.  TJirall,  22  Verm.  2G2.  34. 

•'  Ibid.  • 


• 


CH.  XVII.]  PAYMENT,   RELEASE,  ETC.  487 

82.  Where  a  release  of  a  mortgage  is  made  to  distinct 
parties,  it  will  take  effect  according  to  their  respective  inter- 
ests in  the  land,  independent  of  the  mortgage.  Thus,  in 
the  case  of  Baylies  v.  Bussey,^  a  mortgagor  and  mortgagee 
joined  in  a  second  mortgage.  The  second  mortgagee  took 
possession  for  breach  of  condition,  but,  before  the  expiration 
of  three  years,  tendered  a  release  of  his  mortgage,  which  the 
parties  refused  to  receive,  till  after  the  lapse  of  five  years. 
The  release  was  held  to  reinstate  the  mortgagor  and  first 
mortgagee  in  the  same  relative  position  as  if  the  second 
mortgage  had  not  been  made. 

82  a.  Where  a  creditor  agreed  to  discharge  his  debtor, 
upon  the  fulfilment  of  a  certain  agreement  by  him,  oinder 
which  the  debtor's  goods  were  to  be  surrendered  to  the  cred- 
itor, &c.,  but  all  remedies  on  a  certain  mortgage,  given  by 
the  debtor  and  others  to  secure  the  debt,  were  expressly  re- 
served by  the  same  agreement ;  held,  the  other  mortgagors 
were  not  discharged  from  their  liability  as  sureties.^ 

83.  In  most  of  the  States,  a  summary  method  of  releasing 
or  discharging  mortgages  has  been  provided  by  statute ; 
which  is,  an  entry  upon  the  margin  of  the  record  in  the 
Registry  of  Deeds.  This  mode  has  probably  to  some  extent 
superseded  the  more  technical  forms  of  discharge,  {j) 

1  5  Greenl.  153.  2  Clagett  v.  Salmon,  5  Gill  &  J.  314. 


(y)  In  Massachusetts,  New  Hampshire,  Maine,  Rhode  Island,  Vermont, 
Delaware,  New  Jersey,  Pennsylvania,  Alabama,  South  Carolina,  Missouri, 
Illinois,  Indiana,  Michigan,  Arkansas,  Mississippi,  Wisconsin,  (the  discharge 
to  be  attested  by  the  register,)  it  is  provided  by  statute,  that  mortgages  may 
be  discharged  upon  the  margin  of  the  public  record.  In  Pennsylvania, 
Missouri,  Illinois,  Mississippi,  and  Alabama,  the  mortgagee  shall  enter  the 
discharge  in  three  months  after  demand,  (or  in  Missouri  give  a  release,) 
under  penalty  of  forfeiting  a  sum  not  exceeding  the  debt.  In  South  Caro- 
lina, in  three  months  from  demand  of  any  one  interested  in  the  estate,  under 
penalty  of  one  half  of  the  debt.  In  Massachusetts  and  Wisconsin,  seven 
days  from  demand ;  in  Vermont,  New  Hampshire,  and  Rhode  Island,  ten 
days  ;  in  Arkansas,  sixty  days,  under  a  penalty  not  exceeding  the  debt ;  in 


488  THE   LAW   OF   MORTGAGES.  [CH.  XVII. 

84.  Equity  may  revive  a  mortgage,  the  discharge  of  which 
has  been  procured  by  fraud  of  the  mortgagor.^ 

1  Barnes  v.  Camack,  1  Barb.  392. 


Delaware,  sixty  days,  under  penalty  of  paying  all  damage  or  a  fixed  sum  ; 
Avith  treble  costs  in  Rhode  Island.  The  same  provision  is  made  in  the  last- 
named  State,  for  refusal  to  execute  a  release.  But  the  statute  is  not  to  im- 
pair the  effect  of  any  other  legal  discharge,  payment,  satisfaction,  or  release. 
In  New  Hampshire,  after  payment  or  tender,  the  Court  may  decree  a  dis- 
charge, and  a  copy  of  the  decree  shall  be  recorded.  In  Michigan,  the  mort- 
gagee, before  such  discharge  upon  the  record,  is  to  give  a  certificate,  which 
shall  be  acknowledged,  &c.,  like  a  deed.  Mass.  Rev.  Sts.  408 ;  1  Verm.  L. 
194,  195,  (see  lb.  1837,  6) ;  Verm.  Rev.  Sts.  31G  ;  N.  H.  Rev.  Sts.  245,  246  ; 
Purd.  Dig.  196;  Penn.  Sts.  1849,  527;  Aik.  94;  Hutchinson,  (Miss.)  611; 
Wis.  Rev.  Sts.  330,  331;  N.  J.  Rev.  Sts.  659;  S.  C.  St.  Dec.  1817,  26  ;  Ind. 
Rev.  L.  272;  111.  Rev.  L.  510;  Del.  Rev.  L.  1829,  92;  R.  I.  L.  205,  206; 
Mis.  St.  409,  410;  Mich.  St.  1839,  219  ;  Ark.  L.  748. 

It  seems,  an  action  lies  to  cancel  a  paid  mortgage,  in  order  to  remove  a 
cloud  from  the  plaintiff's  title.  But  whether  this  is  so,  where  the  mortgage 
is  stale,  or  not  asserted,  qu.     Wofford  v.  Thompson,  8  Tex.  222. 

In  Illinois,  a  release  by  deed,  attested  by  one  witness,  and  legally  acknowl- 
edged, is  also  provided.     Sts.  1838,  1839,  197. 

In  Indiana  and  Wisconsin,  the  register  of  deeds  may  discharge  a  mort- 
gage, upon  the  exhibition  of  a  certificate  of  payment  or  satisfaction,  signed 
by  the  mortgagor  (mortgagee)  or  his  representative,  and  attached  to  the 
mortgage ;  which  shall  be  recorded.  A  like  provision  is  made  in  New  York. 
Ind.  St.  1836,  64 ;  1  N.  Y.  Rev.  Sts.  761 ;  Wis.  St.  supra. 

The  following  points  have  been  decided  in  New  York,  in  reference  to  the 
power  of  dcr/iS  in  chancery  to  discharge  mortgages,  which  have  been  made 
for  moneys  deposited  in  that  court. 

Where  moneys  deposited  in  the  Court  of  Chancery,  in  a  suit  for  the  par- 
tition of  lands,  have  been  invested  by  the  clerk  upon  bond  and  mortgage 
executed  to  him  in  his  oflicial  character ;  such  clerk  has  no  power  to  dis- 
charge the  mortgage  without  order  of  Court.  The  Fai'mers',  &c.  v.  Wal- 
worth, 1  Comst.  433.  It  seems,  where  the  clerk  executes  such  discharge 
without  actual  payment  and  without  order  of  Court,  it  is  void  even  as  against 
bond  fide  purchasers  of  the  property  incumbered  by  the  mortgage.  lb.  But 
the  unauthorized  act  of  the  clerk  may  be  ratified  by  the  owners  of  the  fund 
secured  by  the  mortgage.  lb.  A  clerk  in  chancery  loaned  upon  bond  and 
mortgage  a  large  sum,  which  had  been  paid  into  court  to  secure  a  widow's 
dower,  in  pursuance  of  a  decree  in    partition.     Afterwards,  the  borrowers 


CH.  XYII.]  PAYMENT,   RELEASE,   ETC.  489 

85.  Having  made  two  mortgages  of  the  same  land,  the 
mortgagor  procured  a 'discharge  of  the  first  by  fraudulent 


executed  to  the  clerk  another  bond  for  the  same  sum,  and  another  mort- 
gage upon  different  property.  These  securities  were  meant  as  a  substitute 
for  the  former  ones,  and  so  received  by  the  clerk,  who  thereupon,  without 
direction  from  the  Court,  executed  a  satisfaction  of  the  first  mortgage,  which 
was  entered  of  record.  The  owners  of  the  fund,  after  the  death  of  the 
widow,  with  notice  of  all  the  facts,  foreclosed  the  second  mortgage  in  the 
name  of  the  clerk,  and  had  the  property  sold.  Held,  though  the  discharge 
of  the  first  mortgage  was  void,  and  might  have  been  so  treated,  the  election 
of  the  owners  of  the  fund  to  proceed  upon  the  second  was  a  ratification  of 
the  acts  of  the  clerk,  and  therefore  that  a  bill  did  not  lie  to  foreclose  the 
first  mortgage,  for  the  purpose  of  collecting  the  balance  not  realized  by  the 
first  foreclosure.     lb, 

Money  was  paid  into  court  in  a  partition  suit,  and  loaned  by  the  clerk  on 
mortgage  to  A.  and  others.  The  lands  mortgaged  were  sold  by  A.  and  his 
co-mortsasors  to  B.,  who  had  notice  of  the  mortjiage,  and  that  it  was  Tiven 
to  the  clerk  officially,  and  who  reserved  on  that  account  a  part  of  the  pur- 
chase-money, until  the  mortgagors  should  procure  a  discharge  of  the  mort- 
gage. The  mortgage  was  discharged  by  the  clerk,  without  an  order  of  the 
Court,  on  the  giving  of  a  new  mortgage  by  A.  and  others  on  other  and  less 
valuable  lands.  A  certificate  of  the  discharge  was  given  to  B.  by  the  regis- 
ter of  deeds  where  it  was  recorded.  B.  paid  A.  and  others  the  reserved 
portion  of  the  purchase-money.  The  clerk  having  died,  his  successor  fore- 
closed the  second  mortgage,  and,  on  a  sale  of  the  premises,  there  was  a  large 
deficiency,  to  supply  which,  the  clerk  filed  a  bill  to  foreclose  the  first  mort- 
gage. Held,  the  clerk  had  no  power  to  discharge  the  mortgage  without  an 
order  of  the  Court ;  that  notice  of  the  mortgage  being  given  to  B.,  and  the 
mortgage  being  given  to  the  clerk,  the  purchaser  was  thereby  put  upon 
inquiry,  from  what  fund  the  investment  was  made,  and  whether  the  clerk 
had  power  to  discharge  the  mortgage ;  and  that  the  taking  of  the  second 
mortgage  was  no  payment  of  the  first.  As  the  premises  were  laid  out  in  city 
lots,  and  worth  much  more  than  the  mortgage  debt  and  costs,  the  owners 
of  the  equity  of  redemption  were  permitted  by  the  decree  for  foreclosure  to 
direct  in  what  order  the  lots  should  be  sold.  Walworth  v.  Farmers',  &c., 
4  Sandf  Ch.  51. 

In  Massachusetts,  (St.  184  7,  ch.  195,)  where  the  state  treasurer  is  author- 
ized to  discliarge  a  mortgage,  he  may  assign  it,  with  the  same  effect  as  in  other 
cases  of  assignment ;  but  the  State  shall  thereby  incur  no  liability,  express 
or  implied.  In  the  same  State  (St.  1848,  ch.  151,  §  2,)  where  an  execution 
for  possession  has  issued,  and  is  afterwards  satisfied  by  payment  of  debt  and 


490  THE  LAW  OF  MORTGAGES.        [CH.  XVII. 

representations,  and  gave  a  new  mortgage,  the  mortgagee 
beiner  ignorant  of  the  second  incumbrance,  but  the  second 
mortgagee  not  being  party  to  the  fraud.  Held,  upon  a  bill 
in  equity  by  the  first  mortgagee,  the  discharge  should  be  de- 
clared void,  and  a  foreclosure  decreed.' 

86.  So  where  the  release  of  a  mortgage  is  effected  by  com- 
promise, if  the  consideration  is  avoided,  the  release  will  be 
avoided  also.^ 

87.  The  cancellation  of  a  mortgage  upon  the  record  may 
be  declared  void,  where  it  is  made  in  violation  of  the  rights 
of  third  persons. 

88.  A  mortgagor,  having  conveyed  a  part  of  the  premises, 
joined  with  the  purchaser  in  procuring  a  loan  to  take  up  the 
mortgage,  the  purchaser  agreeing  to  take  an  assignment  of 
the  mortgage  for  the  lender's  security,  as  against  that  part 
of  the  land  which  had  not  been  conveyed.  The  purchaser 
ostensibly  advanced  half  the  money,  and  procured  the  as- 
signment, but  soon  after,  without  the  lender's  knowledge  or 
assent,  cancelled  it  of  record.  Held,  as  against  the  lender 
the  cancellation  was  void,  and  that  he  might  still  foreclose 
upon  the  portion  not  conveyed,  and  as  against  a  second 
mortgagee,  whose  mortgage  was  made  before  such  cancella- 
tion.^ 

88  a.  In  equity,  the  cancellation  of  a  mortgage  on  the 
record  is  on\y  primd  facie  evidence  of  its  discharge.  It  may 
be  proved  to  have  been  made  by  accident,  mistake,  or  fraud, 
and  the  mortgage  wUl  then  be  established,  even  against  sub- 
sequent mortgagees  without  notice.* 

1  Barnes  v.  Camack,  1  TJarb.  392.  "  Ilciglnvayv.Pendlcton,  15  0hio,  735. 

3Kin<,'i'.  IMcVickar,  3Sandf.  Ch.  192;  *  Kobiiison   v.    Sampson.  23  Maine, 

McLean  v.  Lafayette,  &.C.,  3   MeLcan,  388;  Trenton,  &c.!;.  Woodruff,  1  Green, 

587.  Ch.  117. 


costs  ;  the  mortgagee,  his  executors,  &e.,  shall,  at  the  expense  of  the  mort- , 
gagor,  enter  on  the  margin  of  the  record  of  the  execution  an  acknowledg- 
ment of  satisfaction,  or  execute  a  deed  of  release,  ■which  shall  be  recorded, 
■with  proper  notes  of  reference  to  the  execution. 


CH.^XVII.]  PAYMENT,   RELEASE,   ETC.  491 

88  b.  A  trustee  of  the  separate  estate  of  a  married  woman, 
having  become  seized  in  his  own  right  of  the  greater  part 
of  the  premises  covered  by  a  mortgage  for  $20,000,  belong- 
ing to  his  cestui  que  trusty  acknowledged  satisfaction  of  such 
mortgage,  and  caused  it  to  be  cancelled  of  record  ;  and  soon 
afterward  conveyed  to  his  brother  one  third  of  the  premises, 
and  took  back  from  him  his -bond  for  $20,000,  with  a  mort- 
gage upon  the  part  so  conveyed  to  him,  payable  at  the 
time  of  payment  of  the  original  bond  and  mortgage.  This 
new  mortgage  the  trustee  substituted  in  lieu  of  the  cancelled 
mortgage,  and  executed  a  declaration  of  trust,  declaring  that 
he  held  the  same  in  trust  for  the  separate  use  of  his  cestui 
que  trfist ;  but  the  property  covered  by  the  substituted  mort- 
gage turned  out  to  be  an  inadequate  security  for  the  $20,000. 
On  a  bill  filed  by  the  cestui  que  trust,  alleging  that  the  orig- 
inal bond  and  mortgage  had  never  been  satisfied  or  paid, 
that  the  cancelment  of  that  mortgage  was  without  her  knowl- 
edge or  assent,  and  a  breach  of  trust ;  held,  the  satisfaction 
of  the  first  mortgage  which  was  produced  in  evidence,  was 
primd  facie  proof  of  its  discharge  ;  that  the  complainant  had 
not  shown  that  the  second  mortgage  was  not  substituted 
with  her  assent,  but  that  a  sale  should  take  place  of  so  much 
of  the  premises  as  were  included  in  the  second  mortgage.^ 

89.  Equity  will  also  interfere  in  behalf  of  a  creditor,  where 
the  debtor  unfanly  seeks  to  avail  himself  of  the  discharge  of 
a  mortgage,  in  avoiding  payment  of  the  debt  secured. 

90.  ■  Bill  of  discovery.  The  bill  alleged,  that  the  plaintiff, 
holding  a  note,  made  by  the  defendant,  secured  by  mortgage, 
in  order  to  enable  the  defendant  to  procure  a  loan  on  a  first 
mortgage  of  the  land,  at  his  request,  and  with  the  under- 
standing and  upon  the  promise  that  the  plaintiff  should  be 
paid  from  the  money  thus  obtained,  executed  a  release  of  the 
mortgage ;  that  the  plaintiff  afterwards  brought  a  suit  on  the 
note,  against  which  the  defence  of  payment  had  been  set  up 
by  way  of  specification  ;  that  the  defendant  had  often  stated 

1  Stuart  V.  Kissam,  11  Barb.  271. 


492  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

his  intention  to  prove  such  payment  by  the  release  of  the 
mortgage ;  and  that  the  plaintifl'  had  no  means  of  proving 
these  facts,  and  was  advised  that  he  could  not  safely  proceed 
to  trial  without  a  discovery.  Held,  the  plaintiff  w^as  entitled 
to  a  discovery.^ 

91.  So  in  case  of  a  note  against  two  persons,  secured  by 
mortgage,  if  the  payee  acknowledges  payment  from  the 
promisors  upon  the  margin  of  the  record,  and  discharges  the 
morto^age  ;  evidence  is  admissible  to  control  such  acknowl- 
edament,  of  the  acts  and  declarations  of  one  of  the  promisors, 
in  an  action  upon  the  note  against  the  other.^ 

1  Haskell  V.  Haskell,  3  Cush.  540.  '^  Patch  v.  King,  29  MaiUi,  448. 


en.  XVIII.] 


ASSIGNMENT. 


498 


CHAPTER   XVIII. 


ASSIGNMENT   OF  A   MORTGAGE. 


1.  What  constitutes  an  assignment, 
and  what  a  discliarije,  of  a  raortp-age. 

24.  Mortgage  of  indtmnit;/ ;  when  the 
law  implies  an  assignment  of  such  mort- 
gage. 

27.  Conditional  assignment  of  a  mort- 
gage, whether  itself  a  mortgage. 

33.  Form  of  assignment. 

3.5.  What  passes  by  an  assignment ; 
whether  a  mortgagee,  after  assignment, 
can  release  or  bring  an  action. 

46.  Whether  he  shall  be  party  to  a 
suit  for  redemption  or  foreclosure. 


48.  Consideration  paid  by  the  as- 
signee, whether  material. 

49.  For  what  amount  the  mortgagor 
is  liable  to  the  assignee.  Whether  the 
latter  is  bound  by  previous  payments, 
set-offs,  &c. 

57.  Guaranty  by  the  mortgagee. 

59.  Effect  of  the  mortgagor's  joining 
in  the  assignment. 

62.  Recording  of  an  assignment.  How 
far  an  assignee's  title  may  be  afiected  by 
fraud  or  notice. 


1.  In  speaking  of  the  natur?  of  a  mortgagee's  interest  in 
the  land,  as  connected  with  the  personal  obligation  or  liability 
which  the  mortgage  is  made  to  secure,  it  has  been  incident- 
ally stated  that  mortgages  are  assignahle.  The  question  has 
been  considered  at  length,  (ch.  11,)  how  far  a  transfer  of  the 
debt  has  the  effect  of  passing  the  mortgage.  It  now  remains 
to  speak  more  specifically  of  the  express  assignment  of  the 
mortgage  itself,  and  of  implied  assignments,  growing  out  of 
transfers  and  relations  between  the  parties,  which,  in  form  or 
name,  do  not  import  to  involve  any  direct  substitution  of  one 
party  for  another,  but  are  invested  \\dth  this  effect  by  opera- 
tion of  law.  The  latter  branch  of  the  subject,  as  being  more 
immediately  connected  with  that  of  discharge  or  extinguish- 
ment^ which  was  treated  in  the  last  chapter,  will  be  first  con- 
sidered. 

2.  Usually,  where  a  claim  secured  by  mortgage  is  trans- 
ferred, the  mortgage  is  expressly  assigned,  as  part  of  the  same 
transaction,  and,  under  these  circumstances,  the  rights  of  the 
parties  are  simple  and  well  defined.  Thus,  it  is  held  in  gen- 
eral, that  when  a  mortgagee  makes  a  deed  of  assignment 


VOL.    I. 


42 


494  THE  LAW  OF  MORTGAGES.         [CH.  XVIII. 

upon  the  back  of  the  mortgage  deed,  or  by  a  separate  instru- 
ment referring  to  it,  the  assignee  is  put  in  the  place  of  the 
mortgagee,  to  all  intents  and  purposes,  unless  a  different 
intention  is  apparent  from  the  contract.'  (a)  Most  of  the 
questions  upon  the  subject,  as  has  been  suggested,  grow  out 
of  contracts  or  conveyances,  which  are  claimed  to  operate  as 
implied  assignments,  or  assignments  b?/  operation  of  law.  It 
will  be  seen,  that  the  inquiry  usually  arising  in  this  class  of 
cases  is,  whether  a  certain  transaction  shall  operate  as  an 
assignment  or  a  discharge  of  the  mortgage  ;  and  that  the 
intention  or  interest  of  the  parties,  so  far  as  such  intention 
was  an  innocent  one,  or  more  generally  the  interest  and  rights 
of  third  persons,  connected  in  relation  to  the  land  with  one 
or  both  of  them,  will  control  the  literal  import  of  the  words 
used  ;  more  especially,  where  there  is  any  fraud  in  the  case.^ 
It  is  said,  "  Equity  will  sometimes  keep  alive  a  mortgage 
which  has  been  substantially^atisfied ;  but  it  is  always  for 
the  advancement  of  justice,  and  never  to  aid  in  the  perpe- 
tration of  a  fraud,  through  the  forms  of  law."  ^  It  is  also 
said,*  "  Where  there  is  no  direct  proof  of  the  intention,  it 
may  be  derived  from  various  circumstances,  and  one  of  those 
is  the  interest  of  the  party  to  merge  his  security,  or  to  keep  it 
alive.  But  that  is  only  one  circumstance,  and  it  may  be 
repelled  by  others.     The  party  may  intend  to  merge,  upon  a 

1  Hills  V.  Eliot,  16  Mass.  30-1.  Simonds,  14  Pick.  104  ;  Ilolden  r.Pike, 


^  See  Wells  v.  Morse,  U  Verm.  17 
Robinson  v.  Lc.ivitt,  7  N.  H.  100 
Campbell  v.  Knights,  11  Shepl.  332 
llatrh    V.  Kimball,  2   Shepl.  9;  4,  14G 


24  Maine,  427. 

3  Per  Gridlcy,  J.,  McGiven  v.  Whcc- 
loek,  7  Barb.  29  ;  Hinchraan  v.  Emans, 
Saxton,  100. 


Ilcliiiliold  )'.  Man,  4   Wharf.  410  ;  Slo-        ^  Loonier  v.  Whcclright,  3  Sandf.  Ch. 
cum  V.  Cutlin,  22  Verm.  137  ;  Eaton  v.     157. 


(a)  One  lidding  two  mortgages  from  the  same  i^erson,  ujion  the  same 
land,  and  executed  at  the  same  time,  assigned  one  of  them  for  good  consid- 
eration. Held,  the  other  was  thereby  pcstponed,  even  in  the  hands  of  a 
subsequent  assignee.  Van  Rensselaer  v.  Stad'ord,  llopk.  5G9.  The  assignee 
of  a  mortgage  is  not  estopped  to  deny  tlie  mortgagor's  title.  Great  Falls, 
&e.  V.  Worster,  15  N.  11.412. 


CH.  XVIII.]  ASSIGNMENT.        .  495 

mistaken  view  of  his  interest.  He  may  judge  erroneously 
when  he  knows  all  the  facts  ;  and  he  may  err  exceedingly  in 
regard  to  the  law  as  applicable  to  what  he  is  doing.  But  I 
am  not  aware  of  any  principle  upon  which  he  can  be  saved 
from  the  consequences  of  a  merger,  where  his  intent  is  clear, 
although,  by  a  mistake  of  the  law,  he  supposes  he  will  obtain 
advantages,  which  the  law,  correctly  applied,  entirely  cuts 
off." 

3.  In  New  York,  a  warranty  deed  of  the  land  has  been 
held  not  to  pass  the  mortgagee's  title.  Thus,  a  mortgagee 
may  foreclose,  though  he  have  conveyed  the  whole  mortgaged 
premises  in  fee,  with  warranty,  because  his  interest  in  the 
mortgage  does  not  pass  by  such  conveyance.  So,  if  he  have 
thus  conveyed  only  a  part  of  the  premises,  he  may  foreclose 
for  the  whole  under  a  power  of  sale,  and  may  himself  become 
the  purchaser.'  But  it  has  since  been  held  in  the  same  State, 
that  although  a  sale  made  by  a  mortgagee  is  irregular,  his 
deed  operates  as  an  assignment  of  the  mortgage.^  The 
Court  say,'^  "  The  deed  was  sufficient,  at  least,  to  transfer 
to  the  defendant  the  money  due  upon  the  mortgage.  The 
interest  on  the  mortgage  was  in  arrear,  and  the  mortgagees 
were  entitled  to  foreclose,  or  to  sell  under  the  statute.  The 
defendant  therefore  occupies  the  position  of  a  mortgagee  in 
possession  of  the  premises  mortgaged ;  the  money  secured 
being  due  and  unpaid.  Although  since  the  revised  statutes 
a  mortgagee  cannot  obtain  possession  at  law,  on  default  of 
payment,  there  is  no  doubt  that  he  may  retain  the  possession 
until  redemption,  if  he  succeed  in  procuring  it  by  the  mort- 
gagor's consent,  or  in  any  lawful  mode." 

3  a.  The  assignment  of  a  mortgage  contained  words  of 
conveyance  in  fee,  habendum  as  fully  as  the  mortgagee  might 
hold  under  the  mortgage.  Held,  the  title  passed,  except 
such  as  might  be  acquired  under  the  mortgage.* 

3  b.  Where  a  mortgage  is  accompanied  by  no  personal 

1  Wilson  r.  Troup,  2  Cow.  195.  3  ji,  p  307. 

2  Olmsted    v.  Elder,   2  Sandf.  Sup.        *  James  v.  Morey,  2  Cow.  246. 
325. 


496  THE   LAW   OP  MORTGAGES.  [CH.  XVIII. 

obligation,  a  quitclaim  deed  from  the  mortgagee  to  a  third 
person  operates  as  an  assignment.'  (b) 

3  c.  In  the  case  of  Hunt  v.  Hunt,^  the  mortgagor,  remain- 
ing in  possession,  conveyed  the  land,  and  afterwards  conveyed 
it  a  second  time.  Subsequently  the  mortgagee,  who,  before 
the  second  deed  of  the  mortgagor,  had  recovered  judgment 
and  taken  possession  under  his  mortgage,  in  an  action  against 
the  mortgagor,  conveyed  to  the  second  purchaser  by  a  quit- 
claim deed  in  the  usual  form,  with  a  warranty  against  him- 
self and  all  claiming  under  him.  Held,  this  conveyance  did 
not  operate  as  an  extinguishment  of  the  mortgage,  thereby 
giving  priority  of  title  to  the  first  purchaser  from  the  mort- 
gagor, but  as  an  assignment  of  the  mortgage.  Shaw,  C.  J., 
remarked  :  ^  —  "If  this  had  been  a  deed  in  the  usual  form  of 
words,  '  give,  grant,  sell  and  convey,  release  and  quitclaim,' 
and  if  it  is  apparent  that  it  was  the  intention  of  the  releasor 
to  transfer,  and  of  the  releasee  to  receive,  the  legal  seizin,  title 
and  interest  in  the  estate,  and  not  to  cancel  and  extinguish 
the  mortgage,  the  deed  would  so  have  operated,  to  pass  the 
mortgagee's  legal  title.  And  we  are  of  opinion  that  such  is 
the  effect  of  the  deed  in  the  present  case."  He  further 
remarks,*  upon  the  point  of  extinguishment :  —  "  The  mort- 
gagee had  a  perfect  right  and  legal  power  to  assign  his  mort- 
gage, if  he  thought  fit,  and  to  give  to  his  assignee  the  same 
right  which  he  held  himself,  that  is,  to  receive  the  amount 
secm'cd  by  the  mortgage,  from  any  person  entitled  by  con- 

1  Dorkrey  v.  Noble,  8  Greenl.  278.  ^  14   pick.   380.     See   Macomber  v. 

2  14    Pick.  S74;  Crooker  v.  Jewell,    Mutual,  &c.,  8  Gush.  136,  137. 
31  Maine,  306.  *  14  Pick.  383,  384,  385. 


(/>)  So  wlicrc  tlic  mortgagee  assigns  the  mortgage,  and  afterwards  takes  a 
quitclaim  deed  from  the  mortgagor,  the  mortgage  title  does  not  merge  in  the 
fee  ;  but  the  mortgagee  becomes  mortgagor  and  the  assignee  mortgagee. 
Pratt  V.  Bank,  &c.,  10  Verm.  293. 

If,  after  such  transfer,  the  mortgagee  mortgage  the  premises,  the  assignee 
having  omitted  to  record  the  assignment,  the  title  of  the  assignee  willi^rovail 
lb. 


CH.  XVIII.]  ASSIGNMENT.  497 

tract  orby  operation  of  law  to  redeem,  and  to  h  old  the  legal 
estate  in  security  of  the  debt  till  it  should  be  so  paid.  And 
we  can  see  no  reason  why  a  purchaser  of  the  equity  of  re- 
demption, whether  of  a  part  or  the  whole  of  the  mortgaged 
premises,  is  in  any  respect  disabled  from  becoming  such 
assignee.  He  may  consider  his  equity  of  redemption  of  no 
value  or  of  small  value,  or  the  title  to  it  invalid  or  doubtful ; 
and  can  there  be  any  reason  in  law,  why  he  who  has  the 
most  urgent  occasion  for  making  such  a  purchase  to  protect 
his  own  interest,  should  be  disabled  from  doing  so,  and  be 
placed,  in  this  respect,  in  a  worse  condition  than  a  stranger  ? 
In  order  to  effect  a  mergei^at  law,  the  right  previously  exist- 
ing in  an  individual,  and  the  right  subsequently  acquired,  in 
order  to  coalesce  and  merge,  must  be  precisely  coextensive, 
must  be  acquired  and  held  in  the  same  right,  and  there  must 
be  no  right  outstanding  in  a  third  person,  to  intervene  between 
the  right  held  and  the  right  acquired.  The  case  we  are  con- 
sidering supposes  that  a  third  person  has,  by  operation  of  law, 
by  purchase  or  by  attachment,  acquired  certain  rights  or 
claims  to  the  equity  of  redemption,  which  do  not  extend  to 
the  mortgage.  When,  therefore,  the  equity  of  redemption  by 
purchase,  and  the  mortgage  by  assignment,  vest  in  the  same 
individual,  they  do  not  coalesce  or  merge,  if  there  be  in  a 
third  person  a  right  of  dower,  a  right  acquired  by  purchase, 
or  a  real  lien  by  attachment,  intervening  between  the  mort- 
gage and  the  equity.  We  think  the  present  case  is  entirely 
within  these  principles.  It  is  apparent  from  the  form  of  the 
deed  of  quitclaim,  from  the  qualified  covenant  against  incum- 
brances, and  from  the  manifest  object  of  the  parties,  that  it 
was  the  intent  of  the  mortgagee,  not  to  discharge  the  mort- 
gage, but  to  seU  and  transfer  his  legal  title  in  the  mortgaged 
premises,  by  the  species  of  conveyance  long  known  and  used 
in  this  Commonwealth,  when  the  intent  is  to  pass  an  estate 
without  warranty." 

4.  After  attachment  of  an  equity  of  redemption,  the  mort- 
gage debt  was  paid  by  a  stranger,  to  whom  the  mortgagee, 

42* 


498  THE   LAW   OF   MORTGAGES.  [CH.   XVIII. 

with  the  mortgagor's  consent,  gave  a  quitclaim  deed  of  the 
land.  The  attaching  creditor  recovered  judgment,  and  levied 
his  execution  upon  the  land,  as  upon  unincumbered  real 
estate.  In  a  writ  of  entry  by  the  heirs  of  the  judgment  cred- 
itor, against  one  claiming  under  the  grantee  of  the  mortgagee, 
it  was  held,  that  the  deed  operated  not  as  an  extinguishment, 
but  a  transfer,  of  the  legal  title ;  that  the  judgment  creditor 
by  his  levy  did  not  acquire  such  title,  but,  at  most,  only  an 
equity  of  redemption,  which  might  be  the  foundation  of  a 
bill  to  redeem  ;  but  that  this  action  could  not  be  maintained.^ 
5.  Two  of  the  plaintiffs,  who  were  purchasers  of  an  equity 
of  redemption,  contracted  with  one  Richardson  to  sell  him 
the  land  for  |5,000,  he  providing  for  the  redemption  and  for 
payment  of  the  mortgage  debt,  which  was  about  $3,000, 
and  securing  the  surplus  to  the  plaintiffs  ;  the  defendants, 
the  mortgagees,  having  agreed  to  convey  the  land  to  Rich- 
ardson, if  not  redeemed,  and  to  pay  him  the  amount  due  for 
redemption,  if  it  should  be  seasonably  demanded.  The  de- 
fendants gave  a  bond  to  Richardson,  to  secure  their  agree- 
ment, and  he  paid  them  the  mortgage  debt.  The  induce- 
ment to  the  foregoing  transaction  was,  that  the  third  plain- 
tiff was  absent  at  sea,  and  therefore  no  title  could  be  made 
to  Richardson  except  through  the  defendants  ;  and  also  an 
apprehension  by  the  defendants,  that  the  mortgagors  might 
have  a  right  to  redeem  without  the  plaintiffs'  consent. 
Hence  it  was  agreed,  that  Richardson  should  take  his  title 
from  the  defendants  after  a  foreclosure  of  their  mortgage. 
Held,  the  intention  and  effect  of  the  transaction  was,  that 
the  defendants  assigned  the  mortgage  to  Richardson,  sub- 
ject to  the  remaining  equity,  the  plaintiffs  releasing  their 
equity  of  redemption  on  being  paid  or  secured  their  shares 
of  the  surplus  over  the  mortgage  debt;  that  the  bargain 
between  two  of  the  plaintiffs  and  Richardson  did  not  depend 
upon  the  consent  of  the  other  plaintiff,  as  the  title  was  to 
come  through  the  defendants  ;  that  Richardson's  payment  to 

1  Freeman  v.  McGaw,  15  Tick.  82. 


CH.  XVIII.]  ASSIGNMENT.  499 

the  defendants  must  be  considered  as  made  for  himself, 
upon  a  purchase  of  the  land,  not  in  discharge  of  the  mort- 
gage, which  would  defeat  the  object ;  that  although  the  ab- 
sent plaintiif  had  no  opportunity  to  assent  to  the  bargain  or 
otherwise,  yet,  as  the  other  plaintiffs  were  unable  to  redeem, 
the  transaction  was  the  best  that  could  be  done  for  him  in 
preventing  a  foreclosure ;  and  that  the  plaintiffs  could  not 
maintain  a  bill  for  redemption.' 

5  a.  Where  a  part  of  land  mortgaged  is  conveyed,  the 
purchaser  agreeing  in  the  deed  to  pay  the  mortgage,  and  he 
resells,  and  the  second  pm-chaser  buys  the  mortgage  ;  this  is 
a  discharge  of  the  mortgage.^ 

5  b.  But  a  mortgagor  who  is  compelled  to  pay  the  mort- 
gage debt,  after  selling  the  estate  subject  to  the  mortgage, 
becomes  an  equitable  assignee  of  the  mortgage.^ 

5  c.  A  mortgagee  may  preserve  the  mortgage,  by  taking  a 
conveyance  of  the  equity  of  redemption  to  a  trustee,  declar- 
ing such  to  be  his  piu-pose.* 

5  d.  After  an  execution  sale  of  an  equity  of  redemption, 
the  mortgagee  entered  under  a  judgment  and  writ  of  pos- 
session for  condition  broken,  and  before  foreclosure  conveyed 
all  his  interest  in  the  land  to  the  mortgagor.  In  an  action 
by  the  heirs  of  the  mortgagor  against  parties  claiming  under 
the  execution  purchaser,  held,  the  transfer  by  the  mortgagee 
was  an  assignment,  not  an  extinguishment  of  the  mortgage ; 
the  sale  of  the  equity  by  the  sheriff  being  equivalent,  with 
reference  to  the  rights  of  the  parties  to  this  suit,  to  an  abso- 
lute sale  by  the  mortgagor  himself.^ 

6.  A.  gave  to  B.  a  bond  and  mortgage,  and  afterwards  a 
mortgage  of  the  same  land  to  C.  D.,  a  relative  of  A.,  paid 
or  handed  to  B.  two  several  sums,  at  different  times,  taking 
loose  receipts  therefor,  on  account  of  the  bond,  and  after- 
wards a  further  sum  for  the  balance  due,  whereupon  the  tlu"ee 
sums  were  credited  on  the  bond,  as  above  stated.     Held, 

1  Howard  v.  Agry,  9  Mass.  179.  *  Bailey  v.   Richardson,  15  Eng.  L. 

2  Russell  r.  Piston,  3  Scld.  171.  &  Eq.  218. 

3  Kinnear  v.  Lowell,  34  Maine,  299.  ^  liarkcr  v.  Parker,  4  Pick.  505. 


500  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

the  bond  and  mortgage  in  the  hands  of  D.  should  have  prior- 
ity over  the  mortgage  to  C 

6  a.  Writ  of  entry.  The  demandant  claimed  under  a 
mortgage  from  Blanchard  to  the  Hingham  Institution  for 
Savings,  dated  September  23,  1837,  to  secure  a  note  for 
$2,000,  and  assigned  by  the  mortgagee  to  the  plaintiff, 
August  27,  1841.  Blanchard,  on  the  6th  of  May,  1839, 
leased  a  part  of  the  premises  to  the  defendants  for  five  years, 
they  agreeing  to  pay  him  so  much  per  annum  as  rent,  to 
lend  him  $500  on  his  note,  and  to  take  payment  of  the  note 
by  annually  indorsing  the  rent  thereon.  June  12,  1839, 
Blanchard,  for  the  consideration  of  $2,000,  conveyed  the 
premises  to  the  demandant  "subject  to  a  mortgage  of  $2,000 
to  the  Hingham,  &c.  and  the  store  occupied  by  (ihe  defend- 
ants) being  under  lease  to  them  of  five  years,  and  $500  hav- 
ing been  already  paid  to  said  Blanchard  on  the  lease ; "  the 
demandants  giving  back  a  bond  to  reconvey  upon  payment 
of  $2,000  in  three  years,  with  interest  annually.  Neither 
party  understood  this  transaction  as  a  mortgage,  but  as  a 
sale  for  the  full  value  of  the  premises.  Previously  to  the 
assignment-  of  the  mortgage  to  the  demandant,  one  of  the 
defendants  offered  the  mortgagees  to  pay  and  take  an  as- 
signment of  the  mortgage,  but  the  latter  refused  the  offer. 
Held,  the  action  was  maintainable.  The  Court  remark:  — 
"  The  question  is,  whether,  upon  the  facts  reported,  the  mort- 
gage was  extinguished  by  the  said  assignment.  And  we 
are  all  of  opinion  that  it  was  not.  When  the  demandant 
took  the  assignment,  he  held  the  same  premises  by  virtue  of 
a  subsequent  mortgage  to  him  from  the  said  Blanchard ;  and 
he  had  the  right  to  pay  off  the  previous  mortgage  and  to 
extinguish  the  same,  or  to  take  an  assignment  of  it,  and  to 
keep  up  the  incumbrance  for  his  own  benefit,  and  to  pro- 
tect himself  against  intervening  incumbrances.  The  general 
rule  is,  that  where  the  legal  title  by  the  mortgage  becomes 
united  with  the  equitable  title,  —  the  mortgage  is  merged 

'  Lambert  v.  Ildl,  3  Ilalst.  Ch.  410,  651. 


en.  XVIII.]  ASSIGNMENT.  501 

and  extinguished.  But  if  the  owner  of  the  legal  and  equi- 
table titles  has  an  interest  in  keeping  those  titles  distinct,  he 
has  a  right  so  to  keep  them,  and  the  mortgage  will  not  be 
extinguished.  This  action  may  be  well  maintained,  the  de- 
mandant having  the  legal  title.  But  the  tenants  have  a 
right  by  virtue  of  their  lease  to  redeem  the  prior  mortgage, 
and  they  will  be  entitled  to  have  a  conditional  judgment 
entered."  ^ 

7.  The  same  doctrine  has  been  held  by  the  same  Court 
in  a  later  case.^  Shaw,  C.  J.,  says :  — "  Whether  a  given 
transaction  shall  be  held,  in  legal  effect,  to  operate  as  a  pay- 
ment and  discharge,  which  extinguishes  the  mortgage,  or  as 
an  assignment,  which  preserves  and  keeps  it  on  foot,  does 
not  so  much  depend  upon  the  form  of  words  used,  as  upon 
the  relation  subsisting  between  the  parties  advancing  the 
money,  and  the  party  executing  the  transfer  or  release,  and 
their  relative  duties.  If  the  money  is  advanced  by  one 
whose  duty  it  is,  by  contract  or  otherwise,  to  pay  and  can- 
cel the  mortgage,  and  relieve  the  mortgaged  premises  of  the 
lien,  a  duty  in  the  proper  performance  of  which  others  have 
an  interest,  it  shall  be  held  to  be  a  release,  and  not  an  as- 
signment, although  in  form  it  purports  to  be  an  assign- 
ment, (c)  When  no  such  controlling  obligation  or  duty 
exists,  such  an  assignment  shall  be  held  to  constitute  an 
extinguishment  or  an  assignment,  according  to  the  intent  of 
the  parties  ;  and  their  respective  interests  in  the  subject  will 
have  a  strong  bearing  upon  the  question  of  such  intent." 

7  a.  So,  it  is  said,  "  the  spirit  of  the  cases  seems  to  be 
this ;  that  where  the  tenant  in  possession  enters  by  vntue  of 
a  purchase  from  the  mortgagor,  then  the  subsequent  pur- 
chase of  the  mortgage  by  him  is  an  extinguishment."  ^ 

1  Loud  V.  Lane,  8  Met.  517.  28  ;  Knickeibacker  r.  Boutwell,  2  Sandf. 

'•^  Brown  v.  Lapliam,    .3    Cusli.  5.54,  Ch.  319;    Cutler   v.   Lincoln,  3   Cush. 

555;  Tyler  r.  Lake,  4  Sim.  351  ;  Aid-  125  ;  Kinley  v.  Hill,  4  Watts  &  S.  426. 

ridge  v.  Westhrook,  5  Eeav.  188  ;  Coote,  '^  Per  Savage,  C.  J.,  Coates  v.  Chce- 

464;  Vanderkcuip  v.  Shcltou,  H  Paige,  ver,  1  Cow.  460. 

(c)  See  Garwood  r.  Eldridge,  1  Green.  Ch.  145. 


502  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

7  b.  So,  it  i§  held,  that  when  a  mortgagor  redeems,  it 
should  always  be  construed  as  a  payment,  he  being  person- 
ally liable  for  the  debt.  But  when  his  vendee  redeems,  who 
is  not  personally  liable,  and  there  is  an  intervening  mortgage 
between  the  one  redeemed  by  him  and  his  equity  of  redemp- 
tion, the  same  rule  should  prevail  as  in  the  case  of  a  redemp- 
tion by  a  subsequent  mortgagor.' 

7  c.  So,  where  a  mortgagor  borrows  money  to  pay  off  a 
mortgage,  and  gives  a  second  mortgage  therefor,  and  the 
first  is  cancelled ;  the  second  mortgagee  has  no  equity  to 
revive,  and  be  subrogated  to  the  former  mortgage,  in  order 
to  overreach  an  intervening  lien.^ 

7  d.  A.  levied  an  execution  on  mortgaged  land  after  a 
decree  for  foreclosure,  but  before  the  time  limited  by  the  de- 
cree for  redemption,  and  caused  so  much  thereof  to  be  set 
out  as  would,  in  the  opinion  of  the  appraisers,  amount  to 
the  sum  levied  for  and  the  mortgage  money.  He  then  pro- 
cured from  the  mortgagee  an  assignment  of  his  interest, 
which  he  caused  to  be  recorded  after  the  equity  of  redemp- 
tion had  expired.  Held,  that  he  was  not  under  such  obliga- 
tion to  redeem,  that  the  assignment  must  operate  as  an 
extinguishment  of  the  mortgage,  and  that  he  might  hold  the 
whole  of  the  land  against  the  mortgagor.^ 

8.  So,  where  dower  was  claimed  in  a  mortgaged  estate,^ 
upon  the  ground  that  the  mortgage  had  been  assigned  to 
the  owner  of  the  equity,  and  thereby  extinguished,  it  was 
said  by  the  Court,  "  When  any  right,  estate  or  interest 
intervenes  between  the  particular  and  the  general  estate, 
which  are  thus  united,  no  coalescence  takes  place,  but  each 
remains  distinct.  If  the  plaintiff  had  the  right  of  dower 
claimed,  it  was  a  real  interest  in  the  estate  intervening  b'e- 
tween  the  mortgage  and  the  general  right  of  redemption, 
which  prevented  a  merger  by  the  union  of  these  titles."  ^ 

'  Johnson    v.    Johnson,    Wiilk.    Ch.         •'  Tichont  v.  Iliirnion,  2  Aik.  37. 
331.  *  Brown  v.  Jjaphtini,  3  Cush.  557. 

^  Banta  v.  Garmo,  1  Sandf.  Cli.  383. 


CH.  XVIII.]  ASSIGNMENT.  503 

8  a.  Where  the  purchaser  of  an  equity  of  redemption, 
after  taking  possession,  took  an  assignment  of  the  mortgage, 
and  entered  to  foreclose  ;  held,  the  widow  of  the  mortgagor 
might  elect  to  consider  him  in  possession  under  the  mort- 
gage, though  the  entry  was  ineffectual  for  foreclosure ;  and 
that  upon  a  bill  in  equity  to  redeem,  brought  by  her,  he  was 
bound  to  account  for  the  rents  and  profits  from  the  time  of 
assignment ;  but  not  for  those  received  prior  to  the  assign- 
ment' 

8  h.  The  wife  of  A.,  being  seized  of  land,  joined  with  him 
in  several  mortgages  of  it  to  secure  his  bonds.  Before  the 
death  of  A.,  his  attorney,  with  funds  furnished  by  him,  paid 
the  mortgages,  and  took  an  assignment  of  them  to  B.,  who 
gave  a  certificate  to  A.  that  he  held  them  in  trust  for  him, 
and  subject  to  his  control.  Held,  A.  was  the  principal 
debtor,  and  his  wife's  land  stood  in  the  relation  of  surety  for 
his  debt ;  that  the  securities  belonged  to  him  in  equity,  and 
the  lands  were  discharged  from  the  mortgages.^ 

9.  In  the  case  of  Moore  v.  The  Harrisburg  Bank,^  the 
Court  say  :  —  "It  may  be,  that  a  person  who  has  become  a 
creditor  or  has  parted  with  his  rights  upon  the  faith  of  a 
legal  presumption  of  the  merger  of  a  mortgage,  fairly  raised 
by  the  acts  of  the  party  in  whom  the  right  to  the  mortgage 
and  the  estate  in  fee  had  become  united,  aU  of  which  is 
placed  upon  record,  shall  be  entitled  to  have  the  mortgage 
considered  merged  as  respects  him ;  yet  here  the  persons 
claiming  to  have  the  benefit  of  a  merger  parted  with  noth- 
ing upon  the  faith  of  any  such  presumption.  They  had 
been  creditors,  and  obtained  their  liens  before  ;  their  con- 
dition was  not  made  worse  by  keeping  the  mortgage  alive." 

10.  An  execution  being  extended  upon  land  of  the  debtor, 
subject  to  two  mortgages,  the  mortgagees  made  an  agree- 
ment witli  the  mortgagor,  to  which  the  creditor  was  privy, 
that  the  land  should  be  sold,  and  the  proceeds  applied  first 


1  Gibson  v.  Crehorc,  5  Pick.  146.  3  g  Watts,  150. 

2  Fitch  V.  Cothcal,  2  Sandf.  Ch.  29, 


504  THE   LAW   OF  MOETGAGES.  [CH.  XVIII. 

to  their  mortgages,  then  to  the  execution.  The  land  was 
accordingly  sold,  and  the  purchaser  paid  the  mortgages,  and 
the  balance  of  the  proceeds  to  the  execution  creditor.  The 
first  mortgagee  acknowledged  satisfaction  upon  the  record, 
and  the  second  released  all  his  right  to  the  mortgagor.  On 
the  same  day,  the  mortgagor  conveyed  with  warranty  to  the 
purchaser.  Held,  without  regard  to  the  execution  creditor's 
knowledge  of  the  transaction,  the  effect  of  it  was,  to  make  the 
purchaser  substantially  an  assignee  of  the  mortgages,  the 
mortgagor  being  a  mere  instrument  for  effecting  the  assign- 
ment; and  that  the  execution  creditor  could  not  hold  the 
land  without  paying  the  mortgages  to  the  purchaser.' 

11.  In  Tuttle  V.  Brown,^  it  was'held,  that  the  purchaser  of 
an  equity  of  redemption  sold  on  execution,  who  afterwards 
takes  an  assignment  of  the  mortgage,  may  recover  posses- 
sion of  the  land,  by  a  suit  commenced  before  the  expiration 
of  the  mortgagor's  right  to  redeem  the  equity,  without  an 
entry  by  himself  or  the  mortgagee.  There  is  no  merger  of 
the  mortgage. 

12.  A  mortgagee,  before  foreclosure,  agreed  to  receive  the 
sum  due  at  a  certain  day,  after  foreclosure,  which  he  received 
accordingly,  and  by  the  mortgagor's  direction  transferred  his 
title  to  a  third  person,  who  had  advanced  most  of  the  money. 
Held,  this  was  not  a  payment  and  discharge  of  the  mortgage, 
but  a  conveyance  of  the  land,  and  that  although  the  assignee 
gave  to  the  mortgagor,  soon  after  the  transfer,  a  written 
promise  to  convey  to  him  on  payment  of  his  advance  with 
interest,  he  did  not  thereby  become  a  mortgagee,  whose 
title  would  not  be  liable  to  an  execution.  It  seems,  as 
against  him,  the  mortgagor  might  specifically  enforce  the 
contract,  if  no  rights  of  third  persons  had  intervened,  and 
that  such  contract  might  in  equity  constitute  a  mortgage  or 
trust.'^  Woodbury,  J.,  remarks  as  follows  :  *  —  "It  would 
be  unjust  to  treat  the  transaction  as  a  payment  and  a  mere 

1  Marsli  V.  llice,  1  N.  H.  1G7.  ^  j  Shaplcy  v.  Rangcley,  1  W.  &  M. 

-  14  rick.  514.  213. 

*  lb.  pp.  218,  219. 


CH.  XVIII.]  ASSIGNMENT.  505 

discharge  of  the  mortgage.  Because  that  would  strip  Web- 
ster, who  advanced  most  of  the  money,  of  all  security  for  it ; 
and  it  would  do  this  also  against  the  clear  intent  of  Spring, 
the  mortgagor,  who  not  only  procured  a  conveyance  of  the 
premises  to  be  made  to  Webster  by  the  bank,  which  is  in- 
consistent with  an  intent  merely  to  discharge  the  mortgage, 
but  took  back  a  writing  from  Webster,  stipulating  to  permit 
Spring  to  pay  him  the  sum  advanced  at  any  time  within 
three  years ;  and  then  to  receive  back  a  conveyance  of  the 
premises.  All  this  shows  explicitly  Spring's  intention  not  to 
have  the  money  paid  to  the  bank  applied  simply  to  discharge 
the  mortgage,  but  rather  to  have  the  bank's  title  under  it 
conveyed  to  some  third  person.  The  parties  must  in  equity 
be  regarded  as  intending  to  have  an  absolute  estate  exist  in 
the  bank,  but  under  a  stipulation  that  it  should  be  conveyed 
to  Spring  or  his  appointee,  at  the  time  the  check  became 
p'ayable,  if  the  money  was  then  paid ;  that  such  an  estate 
was  conveyed  to  Webster  by  the  bank,  he  being  properly 
selected  by  Spring  to  receive  the  conveyance  on  account  of 
his  having  advanced  most  of  the  money,  and  that  Webster 
thenceforward  held  an  absolute  estate,  and  not  an  assign- 
ment merely  of  a  mortgage.  It  was  not  an  assignment  of 
the  mortgage  merely,  for  other  reasons,  because  it  had 
become  foreclosed,  and  must  be  so  considered  in  order  to 
enforce  the  views  of  the  parties  and  the  equities  of  the 
case.  Nor  does  it  purport  to  be  a  mere  assignment,  as  the 
note  and  mortgage  deed  were  given  up  to  Spring  rather 
than  transferred  to  Webster,  he  getting  a  conveyance  of  the 
premises  only.  Webster's  writing  to  Spring  was  not  sealed, 
nor  given  the  same  day  with  the  deed  ;  nor  was  it  an  agree- 
ment between  the  parties  to  the  deed.  And  this  would 
prevent  it  from  being  what  it  otherwise  might  be,  a  defeas- 
ance, and  the  deed  coupled  with  it  a  mortgage  on  its  face. 
But  for  the  circumstance  of  the  writing  not  being  between 
the  grantor  and  grantee  in  the  deed,  it  might  be  held  in 
chancery,  if  Webster  could  sue  Spring  for  the  money,  that 
VOL.  I.  43 


506  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

such  writing  converted  the  deed  into  a  mortgage.  Possibly 
Spring,  if  he  choose,  might  in  chancery  have  the  land  charged 
with  a  trust  or  mortgage,  before  any  third  person  had  bought 
or  levied  on  the  premises  without  notice  of  Spring's  claims. 
But  as  to  such  third  persons,  the  title  of  Webster  must  be 
deemed  an  absolute  one." 

12  a.  A  mortgagor  conveyed  one  half  the  land,  by  metes 
and  bounds,  to  A.;  the  other  to  B.;  paid  the  mortgage  in 
part,  and  died.  A.  pays  the  balance,  taking  an  assignment 
of  the  mortgage.  The  heir  of  B.,  he  being  dead,'  brings 
ejectment  against  A.  for  the  B.  half.  Held,  there  was  no 
merger  as  to  this  half,  but  the  defendant  had  the  rights  of 
an  assignee.' 

12  b.  After  the  bringing  of  a  writ  of  entry  by  a  mortgagor, 
the  assignment  by  a  mortgagee  to  the  tenant  in  such  action, 
of  a  mortgage  on  the  land,  the  condition  of  which  has  been 
performed,  will  not  defeat  the  action.^ 

13.  In  the  case  of  Peltz  v.  Clarke,^  certain  land  which  had 
been  mortgaged  was  sold  after  the  mortgagor's  death  by 
trustees,  to  pay  his  debts.  No  deed  was  given  to  the  pur- 
chaser, but  he  had  paid  most  of  the  purchase-money.  The 
mortgagee  brought  ejectment  upon  the  mortgage  against  the 
trustees  and  the  heirs  of  the  mortgagor,  and  obtained  a  decree 
for  foreclosure  and  sale.  The  purchaser,  with  the  consent  and 
in  presence  of  one  of  the  trustees,  paid  the  whole  amount  due 
upon  the  mortgage,  it  being  considered  a  part  of  the  purchase- 
money  due  under  the  trustees'  sale.  The  mortgagee  gave 
the  purchaser  a  receipt,  and  an  order  to  enter  the  suit  "  set- 
tled," which  was  done.  The  heirs  of  the  mortgagor  then 
bring  an  action  of  ejectment  against  the  purchaser.  Held, 
although  a  stranger  could  not  set  up  a  mortgage,  satisfied  by 
the  mortgagor,  to  defeat  his  title,  he  might  thus  use  a  mort- 
gage bought  in  by  himself ;  that,  as  the  purchaser  owned  the 
equitable  estate,  and  had  paid  off'  the  mortgage  on  his  own 

1  Casey  V.  Buttolph,  12  Barb.  637.  »  5  Tct.  481. 

'■^  Chadbournc  v.  Kacklitt",  30  Maine, 
354. 


CH.  XVIII.]  ASSIGNMENT.  507 

account,  the  incumbrance  belonged  to  him,  and  the  mortgagor 
could  not  have  demanded  a  reconveyance  from  the  mortga- 
gee ;  and  that  this  action  could  not  be  maintained. 

14.  Mortgage,  to  secure  certain  sums  of  money,  ffcid  also 
the  payment  by  the  mortgagor  to  a  bank  of  a  certain  sum 
due  from  the  mortgagee,  and  for  which  the  mortgagee  had 
mortgaged  the  same  land  to  the  bank,  with  a  power  of  sale. 
Afterwards  the  mortgagor  became  a  bankrupt ;  and  the 
premises  were  sold  under  the  power,  and  the  mortgagor 
became  the  purchaser.  He  subsequently  received  a  discharge 
in  bankruptcy.  Held,  the  mortgagor  did  not  acquire  an  ab- 
solute title,  but  took  subject  to  his  own  mortgage,  so  far  as 
the  debts  thereby  secured  remained  unpaid,  although  that 
mortgage  contained  no  wan-anty  of  title.^ 

15.  Land  mortgaged  to  secure  a  bond  w^as  conveyed  by 
the  mortgagor,  the  purchaser  agreeing  to  pay  the  debt  and 
interest.  Upon  his  failure  to  pay  the  interest,  the  mortgagor 
paid  it,  and  it  was  indorsed  upon  the  bond.  The  mortgagor 
then  purchased  the  securities,  and  took  an  assignment  of  them 
in  the  name  of  a  trustee.  Held,  upon  a  sale  of  the  land  by  a 
sheriff,  he  was  entitled,  as  against  a  subsequent  judgment 
creditor  of  the  purchaser,  to  receive  from  the  proceeds  the 
principal  as  well  as  interest  of  the  mortgage  debt.^  The 
Court'  say  :  ^  — "  Contrary  to  what  would  seem  to  be  the 
English  doctrine  on  the  subject,  it  is  now  definitively  settled 
in  Pennsylvania,  that,  though  actual  payment  discharges  a 
judgment  oi^^ther  incumbrance  at  law,  it  does  not  in  equity, 
where  justice  requires  it  should  be  kept  afoot  for  the  safety 
of  the  paying  surety.  And  this  is  always  the  case  where  the 
amount  of  the  debt  is  advanced  to  procure  the  control  of  the 
security,  and  not  with  the  intent  to  extinguish  it."  In  regard 
to  a  supposed  distinction  in  this  respect  between  the  principal 
and  interest  of  the  debt,  the  Court  further  remark :  —  "It  is 
ordinarily  difficult  to  conceive  a  mere  surety's  intention  to  be 

1  Stewart  r.  Anderson,  10  Alab.  504.  »  lb.  500,  501. 

2  Morris  v.  Oakford,  9  Barr,  498. 


608  THE   LAW    OF   MORTGAGES.  [CH.  XVIII. 

extinguishment,  and  not  advancement.  Prima  facie,  the 
latter  is  to  be  taken  as  the  object.  Here,  every  thing  nega- 
tives the  idea  (that)  the  mortgagors  intended  to  discharge  the 
yearly  •bterest  in  case  of  Barrington,  who  had  expressly 
agreed  to  pay  it.  Nor  does  this  conclusion  work  injustice  to 
Morris,  the  subsequent  judgment  creditor.  He  took  his  judg- 
ment, of  course,  subject  to  the  prior  mortgage,  as  it  was 
exhibited  by  the  record,  and  the  interest  growing  due  under 
it.  He  must  be  taken  to  have  had  notice  of  the  debtor's 
express  undertaking  to  discharge  the  mortgage  debt  and  its 
interest.  He  was  bound  to  know  that  payment  of  the  latter* 
by  the  mortgagors  did  not  discharge  the  land  of  its  lien.  His 
delay  to  enforce  his  judgment  was  consequently  at  his  own 
risk,  in  the  absence  of  imputed  fraud  or  deceit  practised  by 
the  mortgagors,  to  whom,  at  all  times,  he  might  have  had 
recourse  for  information." 

16.  A  daughter  took  by  inheritance  certain  estates  of  her 
deceased  father,  and  also  became  entitled  under  his  marriage 
settlement  to  a  sum  which  the  trustees  of  the  settlement  had 
lent  him  on  mortgage  of  the  estates.  The  daughter  by  deed 
charged  the  estates  and  the  sum  secured  on  them  with  an 
annuity,  and  otherwise  indicated  that  she  intended  the  mort- 
gage should  be  kept  alive,  at  least  for  the  purpose  of  securing 
the  annuity.  Soon  afterwards  she  executed  a  will,  devising 
the  estates,  after  payment  of  her  own  debts,  and  settlement  of 
her  father's  o-^rtiV^,  but  not  disposing  of  the  residuary  personal 
estate.  Held,  as  against  her  next  of  kin,  the^icumbrance 
created  by  her  father  merged  in  the  estates.^ 

17.  On  the  20th  of  August,  1800,  a  mortgage  was  made 
to  secure  the  sum  of  $2,500,  payable  in  one  year.  In  1801, 
a  creditor  of  the  mortgagor  caused  his  equity  of  redemption 
to  be  sold  on  execution,  and  himself  became  the  purchaser. 
In  December,  1806,  the  creditor  paid  and  took  an  assignment 
of  the  mortgagee's  bond  and  mortgage,  and,  in  January,  1811, 
conveyed  the  whole  estate  by  warranty  deed  for  $7,500.     In 

1  Swabcy  v.  Swabcy,  15  Sim.  lOG. 


CH.  XVIII.]  ASSIGNMENT.  509 

March,  1810,  the  creditor  assigned  the  bond  and  mortgage  as 
security.  The  assignment  was  acknowledged  after  the  deed 
of  warranty,  and  the  purchaser  under  that  deed  in  his  answer 
stated  his  belief  that  it  was  also  made  after  that  deed.  Held, 
it  was  the  intention  of  the  creditor  to  extinguish  the  mort- 
gage, as  he  could  have  no  object  in  keeping  it  alive,  and  the 
bill  against  the  purchaser  was  dismissed.^ 

18.  The  purchaser  of  land  mortgaged  paid  the  mortgage, 
and  no  intention  was  then  disclosed  to  keep  the  mortgage 
alive,  nor  any  contract  made  for  an  assignment  of  it.  Eight- 
een years  after  such  payment,  the  purchaser  conveyed  the 
land  with  warranty,  and  afterwards,  without  any  new  con- 
sideration, the  second  purchaser  obtained  an  assignment  of 
the  mortgage  from  the  mortgagee  to  the  first  purchaser. 
Held,  the  mortgage  was  discharged  by  the  payment,  and 
nothing  passed  by  the  assignment.^ 

18  a.  Writ  of  entry,  founded  upon  a  mortgage  from  Fry  to 
Gould,  an  assignment  thereof  to  Willard,  and  a  supposed 
assignment  to  the  father  of  the  demandant,  since  deceased,  in 
whom,  it  was  contended,  an  absolute  title  vested  by  foreclo- 
sure. The  action  was  brought  against  a  second  mortgagee. 
It  appeared  that  the  demandant,  after  purchasing  the  right  of 
redeeming  both  the  mortgages,  which  purchase  proved  to  be 
void  in  law,  paid  to  Willard  the  amount  of  his 'mortgage, 
taking  from  him  a  deed,  in  which  he  "  remises,  releases, 
grants,  bargains,  and  sells,"  his  interest  in  the  land,  referring 
to  the  mortgage,  "  meaning  hereby  to  release  all  the  right  I 
have  in  the  premises  by  virtue  of  said  mortgage,  the  aforesaid 
sum  having  been  this  day  paid  me  in  discharge  of  said  mort- 
gage." Held,  the  action  could  not  be  maintained,  the  deed 
in  question  having  operated,  not  as  an  assignment  of  Wil- 
lard's  claim,  with  the  land  as  security,  which  claim  was  paid 
by  the  demandant,  but  as  a  grant  of  the  legal  estate,  or  a 
satisfied  mortgage.^ 

1  Gardner  v.  Astor,  3  Johns.  Ch.  53.  ^  "Wade  v.  Howard,  11  Pick.  289. 

2  Given  v.  Marr,  27  Maine,  212. 

43* 


510  THE    LAW    OF   MORTGAGES.  [CH.  XVIII. 

19.  Where  a  second  mortgagee,  holding  also  a  mortgage 
from  a  surety  for  the  same  debt,  purchases  the  premises  of 
the  mortgagor,  subject  to  the  first  mortgage,  for  a  price 
exceeding  both  mortgage  debts  ;  his  own  debt  is  merged  and 
extinguished,  and  the  surety  no  longer  liable.' 

20.  Where  an  assignment  would  be  more  beneficial  to  a 
junior  mortgagee  than  a  satisi"action  of  the  prior  mortgage, 
he  may,  by  a  bill  in  equity,  have  a  decree  for  redemption  and 
to  compel  such  assignment,  after  tendering  the  debt  and 
demanding  an  assignment.^ 

21.  Where  a  mortgagor  transfers  a  part  of  the  land,  and 
the  mortgage  is  assigned  to  the  purchaser,  the  mortgage  is 
not  thereby  merged  as  to  the  remaining  part.^ 

21  a.  A  mortgagor  conveyed  a  part  of  the  land  mortgaged, 
and  the  grantee  afterwards  purchased  the  mortgage.  The 
residue  of  the  land  was  afterwards  sold  on  execution  against 
the  mortgagor,  with  notice  to  the  purchaser,  of  the  mortgage, 
and  of  the  amount  due  upon  it.  Held,  the  former  purchaser 
could  maintain  ejectment  against  the  latter,  and  hold  until 
the  amount  due  on  the  mortgage  was  paid.* 

22.  Where  two  purchasers  of  land  jointly  mortgage  it  for 
the  price,  and  one  of  them  pays  the  mortgage  by  instalments, 
and  upon  the  last  payment  takes  an  assignment  of  it ;  this 
does  not  operate  as  a  merger  or  extinguishment,  so  as  to  give 
priority  to  a  subsequent  judgment  creditor  of  the  other  pur- 
chaser.^ Coulter,  J,,  says  -.^  —  "  Here  the  intent  of  the  mort- 
gagor and  mortgagee  was  quite  apparent,  that  the  security  or 
incumbrance  should  be  kept  on  foot,  because  the  mortgagee 
assigned  it  to  the  recovering  mortgagor.  It  is  also  clearly 
the  interest  of  the  mortgagor,  that  it  should  not  sink  in  the 
inheritance.  If  it  should  be  so  held,  an  incumbrancer  would 
get  part  of  the  proceeds  of  the  sale  in  this  case  against  equity, 


1  Loomcr  v.  Wlieclwriglit,  3    Sandf.         *  I'liick  v.  Kcploglc,  13  Penn.  405. 
Ch.  135.  6  Duncan  v.  Driiry,  0  Burr,  332. 

■■^  Pardee  v.  Van  Anken,  3  Barb.  534.         <^  Ilj.  .333. 

•'  Kiiiy  ?•.  McVlckar,   3    Sandf.    Ch. 
vri. 


CH.  XVIII.]  ASSSIGNMENT.  511 

because,  at  the  time  he  procured  his  incumbrance,  the  mort- 
gage was  indisputably  the  oldest  lien,  and  it  continued  so  up 
till  the  payment  of  the  money  by  Hart.  Why,  then,  should 
the  judgment  against  Duncan,  the  other  mortgagor,  who  had 
really  no  equity  in  the  land,  all  the  money  having  been  paid 
by  Hart,  be  held  extinguished  by  Hart's  payment  of  the 
money  contrary  to  the  expressed  intent  of  the  parties,  merely 
to  take  that  much  out  of  his  pocket  in  favor  of  one  whose 
whole  lien  was  subject  to  the  lien  of  the  mortgage  ?  If  he 
or  anybody  else  had  bid  off  the  land,  to  an  amount  exceeding 
the  mortgage,  then  he  would  have  got  his  money." 

22  a.  A  mortgage  may,  under  some  circumstances,  be  dis- 
charged in  reference  to  the  mortgagee,  but  revived  in  the 
hands  of  an  assignee.  Thus,  there  being  several  mortgages 
upon  land,  and  the  owner  of  a  former  mortgage  becoming 
indebted  to  the  owner  of  the  equity  of  redemption,  the  mort- 
gage debt  was  allowed  in  part  satisfaction  of  such  debt.  The 
mortgage  was  not  cancelled,  but  was  assigned  to  A.,  for  the 
benefit  of  the  owner  of  the  equity,  who  afterwards  borrowed 
money  of  B.,  and  caused  the  bond  and  mortgage  to  be 
assigned  by  A.  to  B.,  as  security.  Held,  the  mortgage  was 
discharged  in  the  hands  of  A.,  who  took  no  better  right  than 
his  assignor;  but  that  the  assignment  revived  it,  subject, 
however,  to  subsequent  incumbrances.^ 

23.  Parol  evidence,  that  an  assignment  of  a  mortgage  was 
intended  to  be  a  discharge,  is  inadmissible,  even  on  the  part 
of  a  third  person,  except  for  the  purpose  of  proving  fraud ; 
such  a^a  fraudulent  variance  from  the  agreement  of  the  par- 
ties, in  order  to  accomplish  some  covert  purpose.^ 

24.  The  question  has  sometimes  arisen,  whether  a  mort- 
gage  of  indemnity,  that  is,  a  mortgage  made  to  secure  the 
mortgagee  on  account  of  his  liabilities  as  surety  for  the  mort- 
gagor, is   extinguished    by  subsequent   transactions,  which 

•  relieve  the  mortgagee  from  any  direct  indebtedness,  without 

1  Bollcs  V.  Wade,  3  Green,  Ch.  458.  -  Howard  v.  Howard,  3  Met.  548;  Ty- 

ler I'.  Tavlor,  8  Barb.  585. 


512  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

subjecting  him  to  any  loss,  while  at  the  same  time  they  sub- 
stitute some  third  party  in  his  place  under  the  mortgage. 

25.  One  Buck,  in  1839,  made  a  mortgage  to  Shaw,  condi- 
tioned as  follows  :  —  "Whereas  said  Shaw,  on  the  13th  of 
September  last,  signed  a  note,  with  said  Buck  as  surety,  for 
$4,000,  payable  to  Daniel  Smith  or  order  in  four  years  from 
date,  with  annual  interest ;  now,  if  said  Buck  shall  save  said 
Shaw  from  any  trouble,  cost,  or  expense,  by  reason  of  signing 
said  note,  this  deed  is  to  be  void."  In  1841,  the  equity  of 
redemption  was  attached,  and  in  April,  1843,  sold  on  execu- 
tion, and  conveyed  to  Hale  and  Eames.  In  September, 
1843,  the  mortgagee  assigned  the  mortgage  to  the  defendant, 
as  follows:  —  "  In  consideration  of  (the  defendant)  agreeing 
to  release  me  from  all  liability,  other  than  the  use  of  my 
name,  in  the  collection  of  the  same,  of  a  joint  and  several 
note,  signed  by  Bushrod  Buck  and  myself  for  $4,000,  dated 
October  7,  1839,  I  hereby  assign,  transfer,  and  set  over  to 
(the  defendant)  all  my  right,  interest,  and  claim  to  the  within 
mortgaged  premises."  The  defendant  thereupon  took  peace- 
able possession,  and  held  it  for  the  purpose  of  foreclosure. 
The  plaintiff  brings  a  bill  in  equity  to  redeem  against  the 
defendant,  claiming  that  nothing  was  due  on  the  mortgage, 
because,  by  the  assignment,  Shaw  was  released  from  his 
liability  as  surety  for  the  mortgagor,  and  the  mortgage  dis- 
charged. Held,  this  was  not  the  effect  of  such  assignment, 
and  that  the  defendant  should  hold  the  land  as  against  the 
plaintiff,  until  the  latter  should  pay  the  mortgagor's  note  to 
the  defendant.^  The  Court  substantially  remark :  ^  -»-  "  The 
real  purpose  of  the  assignment  is  quite  obvious ;  and  the 
instrument  ought  to  be  so  construed  as  to  secure  that  object, 
if  it  may  be  consistently  with  the  rules  of  law.  The  equity 
of  the  case  is  obviously  with  the  defendant,  upon  the  question 
whether  his  note  shall  constitute  a  lien  upon  the  premises, 
before  the  defendant  can  be  required  to  release  the  mortgage. 
The  object  seems  to  have  been,  that  the  defendant  should 

1  Ilaydcn  v.  Smith,  12  Met.  511.  2  ib.  513. 


CH.  XYIII.]  ASSIGNMENT.  '  513 

receive  from  Shaw  a  transfer  of  the  mortgage,  and  thereafter 
rely  solely  upon  that,  and  mgfke  no  claim  on  Shaw  personally. 
The  defendant  at  once  entered  into  peaceable  possession  for 
foreclosure.  It  is  contended  that  the  mortgage  is  discharged, 
because  (according  to  the  terms  of  the  condition)  Shaw  has 
been  saved  from  all  trouble,  &c.,  and  that  by  force  and  effect 
of  the  arrangement  made  by  the  defendant  with  Shaw,  he 
could  be  no  further  damnified.  In  the  assignment  it  is  recited, 
that  in  consideration  of  the  defendant's  agreeing  to  release 
him  from  all  liability,  other  than  the  use  of  his  name  in  the 
collection  of  the  note,  he  assigns  to  the  defendant  all  his 
right,  &c.,  to  the  mortgaged  premises.  This  instrument  is 
not  signed  by  the  defendant,  though  accepted  by  him,  and  to 
some  purposes  assented  to  by  him.  But  we  do  not  think  it 
necessarily  is  to  have  the  same  effect  as  a  release,  under  his 
hand  and  seal,  to  Shaw,  might  have  had.  There  might  have 
been  a  technical  release  to  Shaw,  the  effect  of  which  perhaps 
coiild  not  be  avoided.  But  we  may  .take  into  consideration 
the  entire  language  and  purpose  of  the  instrument.  It  was 
only  a  substitution  of  the  mortgage,  for  the  personal  liability 
of  Shaw,  and  intended  to  be  effected  through  the  name  of 
Shaw.  The  use  of  his  name  in  the  collection  of  the  note 
was  distinctly  stipulated  for  in  the  assignment.  It  contem- 
plated the  use  of  it,  so  far  as  was  necessary  to  perfect  the 
lien.  The  note  has  not  been  paid.  It  may  be  enforced 
against  Shaw,  unless  discharged  by  the  recital  in  the  assign- 
ment. The  recital  was  only  a  qualified  discharge,  to  the 
extent  compatible  with  the  continuance  of  the  security  by 
mortgage.  All  parties  understood  the  mortgage  was  a  lien 
upon  the  property,  to  secure  the  note  to  the  defendant." 

26.  In  Viles  v.  Morlton,^  the  defendant  was  co-surety  with 
Edson  and  Story  to  the  plaintiffs  for  William  Ford,  who 
gave  Edson  and  Story  a  sufficient  mortgage  of  indemnity. 
Ford  subsequently  mortgaged  the  same  property  to  Blake, 
and  also  gave  a  mortgage  of  other  property,  to  be  discharged 

1  11  Verm.  470. 


514  '  THE   LAW    OF   MORTGAGES.  [CH.  XVIII. 

on  Ford's  paying  the  plaintiff's  debt.  Blake  purchased  the 
equity  of  redemption  of  the  mortgaged  premises  and  then 
paid  the  plaintiff's  notes.  Held,  no  action  could  be  main- 
tained 'upon  the  notes  by  or  in  the  name  of  the  plaintiffs, 
they  being  paid  by  the  owner  of  the  equity  of  redemption 
and  second  mortgagee.^ 

26  a.  Pending  a  bill  to  foreclose,  the  solicitor  of  the  com- 
plainants, with  their  consent,  received  from  A.,  a  friend  of 
the  mortgagor,  part  of  the  debt,  agreeing  that  A.  should  have 
the  benefit  of  the  mortgage  to  that  amount.  Held,  an  assign- 
ment in  equity  pro  ta?ito,  as  against  a  subsequent  mortgagee, 
who  could  not  treat  it  as  a  payment.^ 

26  b.  After  assignment  of  a  mortgage,  the  mortgagor  con- 
veyed the  estate,  and  the  purchaser  subjected  it  to  lien  by 
way  of  mortgage,  and  then  gave  notes  with  an  indorser  to 
the  assignee  for  the  interest  due  on  the  original  mortgage, 
which  were  paid  by  the  indorser.  The  land  having  been 
sold,  held,  the  indorser  could  not  claim  title  as  an  assignee  of 
the  first  mortgage,  by  subrogation.^ 

26  c.  A.  appointed  an  agent  to  obtain  a  loan,  authorizing 
him  to  execute  a  mortgage.  B.  indorsed  a  note  for  the  agent, 
which  C,  by  a  subsequent  arrangement  with  A.,  undertook 
to  pay.  B.,  afterwards  learning  that  C.  would  not  pay,  took 
the  mortgage,  but,  before  its  execution,  C.  had  paid  the  note, 
and  B.  assigned  the  mortgage  to  C.  Held,  C.  could  not  en- 
force it.^ 

27.  The  assignment  of  a  mortgage  may  itself  be  construed 
as  a  mortgage,  subject  to  all  the  rights  and  privileges  inci- 
dent to  the  original,  conditional  conveyance,  (d) 

28.  The  plaintiff,  being  indebted  to  the  defendants  upon  a 

1  Sec  Converse  v.  Cook,  8  Verm.  1G6.  »  Neptune,  Sec.  v.  Dorsey,  3  Md.  Ch.  334. 
-  McMillan  v.  Gordon,  4  Ala.  71 G.  *  Ravenel  i\  Lyles,  Speers,  Ch.  281. 

(d)  In  Maine,  it  seems  a  conditional  assignment  of  a  mortgage  may  be 
treated  as  a  mortgage  of  real  estate,  subject  to  redemption  for  three  years. 
If  otherwise,  then  subject  to  redemption  in  reasonable  time.  Cutts  v.  York, 
&c.,  6  Shepl.  IDl. 


CH.  XVIII.]  ASSIGNMENT.  515 

note  to  the  amount  of  $2,000,  and  in  embarrassed  circum- 
stances, upon  their  application  assigned  to  them  as  security 
a  bond  and  mortgage  for  $4,000  ;  it  being  expressly  agreed, 
that  the  sm-plus,  after  paying  the  note,  should  belong  to  him. 
The  terms  of  the  assignment  were,  that  he,  for  the  sum  of 
$2,000,  assigned  the  securities  to  the  defendants,  with  power 
to  collect  $2,000  for  their  own  use  ;  adding  a  covenant  that 
this  sum  was  due  on  the  mortgage,  and  that  the  premises 
should  sell  for  so  much,  with  the  interest  and  and  costs.  In 
1817,  the  defendants  foreclosed,  and  caused  the  premises  to 
be  bid  in  for  $700.  Before  the  sale,  the  plaintiff  was  told  by 
the  agent  of  the  defendants,  that  if  they  purchased,  the  prop- 
erty should  remain  as  it  was  to  him,  and  the  mortgagors 
only  be  foreclosed.  The  plaintiff  always  insisted  upon  his 
right  to  redeem,  and  in  1825  directly  applied  to  do  so,  and 
offered  to  pay  all  that  was  due  ;  but  the  defendants  would 
not  allow  him  to  redeem.  Held,  the  assignment  was  a  mort- 
gage, and  would  have  been  such,  even  though  in  terms  abso- 
lute ;  that  the  defendants  might  foreclose  under  the  statute 
so  as  to  bar  the  mortgagors ;  that  the  assignment  was  a 
mortgage  of  the  power  of  sale  as  well  as  of  the  debt ;  that  if 
the  purchase  had  been  made  by  a  tliird  person  the  plaintiff 
would  have  lost  his  right  to  redeem  the  land,  but  might  stiU 
redeem  in  reference  to  the  surplus  of  the  purchase-money, 
and,  the  defendants  being  themselves  the  purchasers,  and 
still  retaining  the  legal  title,  he  had  not  lost  his  right  to  re- 
deem the  land  itself ;  and,  the  assignment  being  itself  a  mort- 
gage, and  the  plaintiff's  right  of  redemption  not  divested  by 
the  statute  of  foreclosure,  that  the  question  of  waiver  by  lapse 
of  time  did  not  arise.^ 

29.  Where  a  bond  and  mortgage  are  assigned  as  security 
for  a  debt,  a  subsequent  assignee  takes  them,  subject  to  the 
right  of  the  first  assignor  to  redeem,  by  paying  such  debt, 
with  interest.2 

30.  A  second  assignee  of  a  mortgage  paid  the  first  assignee 
the  debt,  to  secure  which  the  first  assignment  was  made,  and 

1  Slee  V.  Manhattan,  &c.,  1  Paige,  48.        2  g^pct  ^.  yan  Wyck,  3  Barb.  Ch.  647. 


516  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

the  balance  of  the  mortgage  debt  to  the  mortgagee,"  by  agree- 
ment of  parties.  The  mortgagee  and  second  assignee  had 
notice  of  an  unregistered  deed  of  the  land,  prior  to  the  mort- 
gage. Held,  the  first  grantee  was  entitled  to  redeem  on  pay- 
ment of  what  the  second  assignee  paid  to  the  first,  with 
interest.^ 

31.  It  is  generally  considered,  that  the  introduction  of  a 
new  proviso  of  redemption  in  the  assignment  of  a  mortgage 
does  not  constitute  a  new  mortgage.  But  where  the  mort- 
gagee assigned  a  part  of  the  mortgage  debt,  and  joined  with 
the  heir  of  the  mortgagor  in  mortgaging  a  part  of  the  lands 
anew,  with  a  new  proviso  and  rate  of  interest,  and  a  bond 
and  covenant ;  held,  in  a  late  case,  this  constituted  a  new 
mortgage.^ 

32.  A  mortgagee,  who  has  pledged  the  mortgage  for  a 
sum  less  than  the  mortgage  debt,  may  file  a  bill  for  fore- 
closure in  his  own  name  ;  especially  if  the  pledgee  refuses  to 
do  it.  The  latter  may  lawfully  file  such  bill,  and  in  such 
case  would  be  trustee  for  the  surplus  over  the  amount  of  his 
own  claim.^ 

33.  With  regard  to  the  form  of  an  assignment,  the  assign- 
ment of  a  bond  and  mortgage  may  be  valid,  especially  in 
equity,  though  the  assignee  be  not  called  by  name  ;  it  is  suffi- 
cient to  describe  him  in  a  particular  character  sustained  by 
him,  if  this  description  identifies  him  as  well  as  a  name.'*  (e) 

1  Gliddcn  V.  Hunt,  24  Pick.  221.  =^  Norton  r.  Warren,  3  Edvv.  lOG. 

-  Cootc,  357;  Barliam  v.  Earl,  &c.,  *  Lady  Superior  y.McNamara,  3  Barb. 
3  M.  &  K.  106.  Ch.  375. 


(e)  la  Shaw  v.  Loud,  12  Mass.  449,  a  bond  and  mortgage  were  given  to 
the  plain  tiils  by  the  description  of  the  heirs  at  law  of  John  Tyri-el,  without 
mentioning  any  of  their  names,  he  being  dead  at  the  time.  Held,  the 
securities  were  valid. 

The  assignment  of  a  mortgage,  like  the  mortgage  itself,  may  be  made  to 
several  persons,  jointly.  And  where,  in  such  case,  each  assignee  pays  a  cer- 
tain part  of  the  consideration,  and  the  assignment  specifies  the  share  of  each ; 
a  payment  of  such  share  to  one  extinguishes  his  interest,  and  he  has  no 
longer  any  power  to  reassign.  Furbush  v.  Goodwin,  Law  Rep.,  March, 
18.35,  p.  GoO. 


CH.  XVIII.]  ASSIGNMENT.  517 

34.  It  has  been  held,  that  where  one  person  takes  a  bond 
and  mortgage  for  the  benefit  of  another,  payable  to  the 
former,  under  a  previous  agreement  to  assign  them  to  the 
latter,  no  particular  formality  of  delivery  and  acceptance  is 
necessary ;  but  placing  them  befcTe  him  for  his  signature  to 
the  assignment  is  a  good  delivery,  and  the  execution  of  such 
assignment  a  good  acceptance.^ 

34  a.  So  actual  delivery  is  not  indispensable  to  a  valid 
assignment.^  (/)     So  it  may  be  made  by  a  mere  indorsement." 

34  b.  The  acknowledgment  is  no  part  of  an  instrument  of 
assignment.* 

34  c.  An  assignee  is,  in  general,  subject  to  the  same  terms 
of  redemption  as  the  mortgagee.^ 

35.  The  assignment  of  a  mortgage'  so  far  divests  the  title 
of  the  mortgagee,  that  he  has  no  power  to  discharge  the 
mortgage  or  any  part  of  it.^ 

36.  The  holder  of  a  mortgage,  having  assigned  it,  after- 
wards received  from  the  mortgagor  his  promissory  note  for 
interest  in  arrear.  I^ld,  the  note  was  void  for  want  of  con- 
sideration. The  bOTden  of  proof  was  on  the  plaintiff,  to 
show,  if  he  could,  that  the  amount  of  the  note  had  been 
applied  on  the  mortgage  debt.  Until  that  was  done,  there 
was  no  consideration.  "  Indeed  the  taking  of  the  note  after 
having  parted  with  the  mortgage,  unless  the  matter  can  be 

iLadySuperiori'.  McNamara,  3Barb.        *  Livingston  v.  Jones,  Harring.  Ch. 

Ch.  375.  16.5. 

2  Aldridge  v.  "Weems,  2  Gill  &  J.  36.  ^  Plenderson  v.  Stewart,  4  Hawks,  256. 

3  Barnes  v.  Lee,  1  Bibb,  526.  «  M'Cormick  v.  Digby,  8  Blackf.  99. 


(/)  In  Maine,  one  in  possession  of  notes,  and  the  mortgage  securing  theiii, 
cannot  maintain  an  action  upon  the  latter  without  a  written  assignment  of 
it.  Lyford  v.  Ross,  33  Maine,  197.  Nor  does  the  sale  of  a  note  operate  at; 
a  legal  transfer  of  the  mortgage  by  which  It  is  secured.  Warren  v.  Ham- 
stead,  33  Maine,  256.  See  ch.  11.  The  assignment  of  a  mortgage,  in  Penn- 
sylvania, carries  with  it  the  claim  against  the  mortgagor,  and  all  the  securities 
which  the  assignor  holds  against  the  mortgagor  or  other  parties  for  the  debt- 
Philips  V.  Bank,  &e.,  18  Penn.  394. 

VOL.  I.  44 


518  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

explained,  was  nothing  less  than  a  downright  fraud  upon  the 
defendant."  ^ 

36  a.  Mortgage  to  secure  a  bond.  The  mortgagee  trans- 
ferred the  securities,  and  afterwards  the  mortgagor  conveyed 
the  land  to  him,  taking  » discharge  of  the  bond  and  mort- 
gage.   Held,  the  discharge  was  invalid  against  the  assignee.^ 

37.  On  the  other  hand,  an  assignee  may  receive  money  in 
virtue  of  his  mortgage,  for  which  he  will  be  liable  to  account 
to  the  mortgagor.  Thus,  the  owner  of  property  insured  at  a 
mutual  office  mortgaged  it,  and,  with  the  assent  of  the  com- 
pany, made  to  the  mortgagee  an  assignment  of  the  policy, 
in  terms  absolute,  and  expressed  to  be  for  valuable  consider- 
ation, but  intended  only  as  security  for  the  mortgage  debt. 
The  mortgagee,  afterwards,  for  valuable  consideration,  as- 
signed the  debt,  mortgage,  and  policy,  with  the  assent  of  the 
company  to  the  latter  assignment ;  and  the  debt  was  subse- 
quently paid  to  the  assignee  by  an  assignee  of  the  mort- 
gagor, who  purchased  with  an  agreement  to  pay  the  mort- 
gage, and  the  mortgage  discharged.  ^The  assignee  of  the 
mortgage,  after  the  expiration  of  the  ^Hicy,  received  the  re- 
turn premium,  and  the  mortgagor  brings  assumpsit  against 
him  to  recover  it.  Held,  though  the  defendant  might  receive 
such  premium  as  attorney  for  the  plaintiff,  he  was  bound  to 
pay  it  over  to  him.^  Shaw,  C.  J.,  says  :*  —  "  Brooks  received 
the  whole  of  his  mortgage  debt  of  Rice,  from  a  fund  provided 
by  the  plaintiff,  and  the  rights  of  the  plaintiff  are  the  same  as 
if  he  had  paid  the  whole  of  the  mortgage  debt  of  the  plaintiff 
in  money.  The  conclusion  seems  inevitable,  that  the  money 
received  by  Brooks  on  the  policy  as  a  return  of  the  premium 
was  received  by  him  to  the  use  of  the  plaintiff;  and  not  hav- 
ing applied  it,  or  had  occasion  to  apply  it  to  the  payment  of 
the  plaintiff's  debt,  he  is  bound  in  good  conscience  to  pay  it 
to  the  plaintiff.  The  sum  received  by  Brooks,  was  received 
after  he  had  been  paid  his  mortgage  debt  in  full ;  it  is  clear, 

1  Gillett  V.   Campbell,  1  Dcnio,  520,  •''  Fclton  v.  Brooks,  4  Cush.  203. 

522.  *  Ibid.  p.  206. 

^  Brown  v.  Blydenburgh,  3  Seld.  141. 


CH.  XVIII.]  ASSIGNMENT.  519 

therefore,  that  he  received  it  on  a  security  which  ought  to 
have  been  surrendered  to  the  plaintiff,  and,  of  course,  to  his 
use.  But  if  he  had  received  it  before,  his  failure  to  apply  it 
towards  the  mortgage  debt,  and  receiving  the  whole  from 
Rice,  who,  as  between  him  and  the  plaintiff,  was  bound  to 
pay  the  whole  as  part  of  his  purchase-money,  is  ample  proof 
that  Brooks  held  the  return  premium  to  the  plaintiff's  use." 

38.  Although  the  assignment  of  a  mortgage  divests  the 
mortgagee  of  his  title  to  the  land,  it  does  not  pass  rent  due 
at  the  time  of  assignment,  without  express  words  tc^  that 
effect.  Lord  Chancellor  Truro  says:  —  "The  question  is, 
what  passes,  generally  speaking,  by  the  assignment  or  con- 
veyance of  a  mortgage  ?  Does  it  pass  all  the  future  rents 
that  are  to  become  due  only,  or  does  it  pass  all  the  rents  at 
that  time  in  arrear,  to  the  mortgagee  ?  One  would  think 
that  was  a  very  ordinary  principle.  Men  are  in  the  habit  of 
conveying  estates  day  by  day,  conveying  the  fee.  Well, 
what  passes  by  that  ?  Do  the  by-gone  rents  in  arrear  pass 
by  such  a  conveyance  ?  If  they  do  not,  what  is  the  rule  of 
law  that  makes  a  difference,  that  the  conveyance  of  the  mort- 
gage shall  transfer  by-gone  rents,  when  the  conveyance  of 
the  whole  estate  would  not  do  that,  but  leave  them  perfectly 
unaffected?"! 

39.  The  assignment  of  a  mortgage  operating  to  divest 
the  mortgagee's  title,  it  has  been  held,  that  a  bill  to  fore- 
close cannot  be  brought  in  his  name,  for  the  use  of  the 
assignee.2  (g-)  It  is  said,  —  "  This  proceeding  is,  in  the  main, 
a  chancery  proceeding,  and  must  be  conducted  according  to 
the  rules  of  equity  pleading.  It  is  incompetent  and  unavail- 
ing therefore  to  sue,  for  the  purpose  of  foreclosing  a  mort- 
gagor's equity  of  redemption,  in  the  name  of  the  mortgagees, 

1  Salmon  v.  Dean,  5  Eng.  Rep.  107,         ^  Barraque  v.  Maunel,  2  Eng.  516. 
Ill;    15Jur.  641. 


(^g)  In  Missouri,  the  assignee  of  a  mortgage  may  sue  for  the  debt  in  his 
own  name.     Crinion  v.  Nelson,  7  Mis.  466. 


520  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

for  the  use  of  another  person.  A  court  of  chancery  could 
take  no  cognizance  of  such  a  beneficiary."  But  where  the 
mortgagee  assigns  his  mortgage  as  security  for  an  advance 
of  money,  which  he  also  covenants  to  pay,  he  stands  to 
some  extent  as  a  surety,  and  cannot  be  enjoined  by  the 
assignee  from  suing  the  mortgagor  upon  his  covenant,  unless 
the  assignee  release  him  from  his  own  covenant,  and  recon- 
vey  any  estate  of  the  mortgagee  included  in  the  second 
mortgage.! 

40#  Where  the  assignee  of  a  mortgage  has  entered  to  fore- 
close, and  afterwards  releases  to  the  assignor  "  all  the  estate, 
right,  &c.,  by  force  of  the  conveyance  made  thereof  by  him, 
&c.,  to  hold  in  like  manner  as  if  he  had  never  conveyed  the 
same,  &c. ; "  the  assignor  may  avail  himself  of  the  entry  for 
the  purpose  of  foreclosure.^ 

41.  If  a  purchaser  from  the  mortgagor,  pending  a  bill 
against  the  latter  for  foreclosure,  takes  an  assignment  of  the 
mortgage,  he  acquires  all  the  rights  of  the  mortgagor,  dis- 
charged of  incumbrance  ;  but  he  may  proceed  with  the  suit, 
(especially  if  the  mortgagee  does  not  object,)  to  a  decree  of 
foreclosure  and  sale,  in  order  to  perfect  his  title.^  So  in 
Pennsylvania,  the  owner  of  the  equity,  uniting  it  with  the 
mortgage,  may  sue  out  a  scire  facias  in  the  mortgagee's 
name  against  the  mortgagor,  with  notice  to  himself,  recover 
judgment,  and  sell  the  estate.^ 

42.  It  is  no  defence  to  an  action  of  ejectment,  brought  by  a 
mortgagor  against  a  third  person,  that  before  commencement 
of  suit  the  latter  paid  the  money  due  on  the  bond  secured  by 
the  mortgage  ;  although,  since  the  commencement  of  suit, 
he  has  taken  a  formal  assignment  of  such  mortgage  ;  such 
payment  giving  the  defendant  only  an  equitable  title  to  the 
land.^ 

43.  In  the  following  case,  one  claiming  to  be  an  equitable 
assignee  was  held  not  entitled  to  pursue  an  action  com- 

1  Gumcy  v.  Sepping,  2  Phill.  40.  *  Moore  v.  Harrisburg,  &c.,  8  Watts, 

2  Cutts  V.  York,  &c.,  6  Shcpl.  191.  138. 

8  Mobile,  &c.  V.  Hunt,  8  Ala.  876.  ^  Den  v.  Dimon,  5  Ilalst.  158. 


CH.  XVIII.]  ASSIGNMENT.  521 

menced  by  the  mortgagee.  Mortgage  by  tenants  in  common 
to  secure  the  debt  of  one  of  them.  The  tenants  afterwards 
transferred  their  respective  titles  to  different  purchasers,  w^ho 
made  partition.  The  mortgagee  then  brought  separate  ac- 
tions against  such  purchasers,  for  their  respective  portions  of 
the  land ;  and  the  purchaser  from  the  debtor,  to  whom,  at 
the  time  of  purchase,  notice  was  given  that  he  would  be 
bound  to  pay  the  mortgage,  paid  the  whole  amount  due,  in 
discharge  of  the  suit  against  him,  under  an  agreement  that 
he  should  thereby  become  owner  of  the  mortgage.  Held,  he 
was  not  entitled  to  pursue  the  action  against  the  other  pur- 
chaser, in  order  to  compel  him  to  contribute  half  of  the  debt.^ 
Shaw,  C.  J.,  says  r^  —  "  This  claim,  on  the  part  of  Green,  is 
purely  equitable,  in  the  nature  of  an  equitable  assignment ; 
and  if  he  cannot  maintain  it  on  this  ground,  he  cannot  main- 
tain it  at  all.  If  the  payment  made  by  Green  was,  strictly 
speaking,  a  payment  of  the  whole  mortgage,  it  would  be  a 
bar  to  both  actions,  both  being  brought  to  recover  payment 
of  one  and  the  same  debt.  But  supposing  it  intended  to  be 
a  payment  of  one  half,  and  a  purchase  of  the  plaintiff's  right 
to  the  other  half,  the  Court  are  of  opinion  that  Green  has  no 
equity.  He  took  Daniel  S.  Workman's  right  only,  and  that 
right  was  to  redeem  the  estate  upon  the  full  payment  of 
Daniel  S.  Workman's  debt.  Sidney  S.  Workman's  estate, 
which  came  to  the  defendant,  was  liable  for  it  in  law,  but 
it  was  in  the  nature  of  a  suretyship.  If  the  suit  had  been 
brought  against  Green  alone,  to  charge  the  whole  mortgage 
debt  on  the  estate  held  by  him,  we  think  he  would  have  had 
no  claim  for  contribution  from  the  tenant  in  this  case.  In 
paying  the  whole  mortgage,  he  in  effect  paid  the  debt  for 
which  his  estate  was  primarily  bound,  to  the  exemption  of 
the  estate  of  the  tenant ;  and  he  was  in  effect  paying  his 
own  debt ;  he  had  no  right  in  equity,  therefore,  to  prosecute 
this  suit  for  his  own  benefit  in  the  name  of  the  nominal 
plaintiff." 

1  Cook  V.  Hinsdale,  4  Cush.  134.  2  jtid.  137. 

44* 


522  THE   LAW   OF   MORTGAGES.  [CH.    XVIII. 

44.  A  mortgagee,  who  has  assigned  his  bond  and  mort- 
gage, with  guaranty,  may  take  further  security  in  his  own 
name  from  the  mortgagor,  without  the  knowledge  of  the  as- 
signee, but  which  will  enure  to  his  benefit.  And  the  mort- 
gagee may  have  the  benefit  of  such  security,  till  fully  in- 
demnified from  the  guaranty.  A  subsequent  creditor,  who 
would  oblige  the  mortgagee  or  his  assignee  to  satisfy  his 
debt  from  the  mortgage  security,  must  make  the  assignee 
party  to  a  bill  for  that  purpose ;  otherwise,  no  sale  can  be 
decreed,  in  order  to  ascertain, the  sufficiency  of  the  security.^ 

45.  So,  the  assignment  of  a  mortgage  may  acquire  addi- 
tional efficacy  from  acts  done  after  such  assignment  by  the 
assignor.  Thus  where  a  mortgage  is  assigned,  any  interest 
subsequently  acquired  by  the  assignor  enures  to  confirm  the 
assignment.'-^   . 

46.  It  is  said  in  an  old  case,  "  if  a  mortgagee  in  posses- 
sion assigneth  over,  if  the  mortgagor  prefer  his  bill,  upon 
supposition  that  the  debt  is  satisfied,  and  to  have  an  account 
of  the  surplus ;  there  he  must  make  the  mortgagee  and  all 
the  assignees  parties."^  (See  infra,  ch.  33.)  But  the  later 
doctrine  is,  that  if  the  mortgagee,  not  in  possession,  assigns 
the  mortgage,  with  the  concurrence  of  the  mortgagor,  he 
need  not  be  made  party  to  a  bill  for  redemption  ;  otherwise, 
where  the  mortgagor  does  not  thus  concur."^  And  where  a 
mortgagor  files  a  bill  against  the  assignee  of  the  mortgage, 
praying  an  account  of  what  is  due  for  principal  and  interest, 
and  also  for  rents  upon  a  lease  made  by  him  to  the  mort- 
gagee, and  for  permission  to  redeem  ;  the  mortgagee  should 
be  made  a  party  defendant.^ 

47.  Where  the  assignee  of  a  mortgage  files  a  bill  for  fore- 
closure against  the  mortgagor,  the  mortgagee  need  not  be 
made  a  party,  though  an  account  is  to  be  taken  of  the  rents 
and  profits  during  his  possession  ;  because  the  amount  may 
be  proved  by  other  evidence,  and  the  mortgagee  would  not 

1  Evertson  v.  Booth,  19  John.  486.  *  1  Pow.  152.  « 

2  James  v.  Morey,  2  Cow.  248.  '"  Wolcott  v.  Sullivan,  1  Edw.  409. 
'^  2  Ercem.  59. 


CH.  XVm.j  ASSIGNMENT.  523 


be  bound  by  any  judgment  in  the  suit,  nor  could  any  relief 
be  had  against  him.' 

48.  With  regard  to  the  co^ideration  of  an  assignment,  a 
mortgage  is  not  affected  by  selling  it  for  less  than  its  nomi- 
nal value.2  (A)     Where  the  assignee  purchases  for  less  than 


^  Whitney  v.  McKinnev,  7  John.  Ch.         ^  Warner  i'.  Gouverneur,  1  Barb.  36. 
144. 


(h)  Where  an  assignee  of  the  mortgagor  brings  a  bill  in  equity  to  redeem 
against  the  mortgagee  and  mortgagor  ;  he  must  prove  a  valuable  considera- 
tion for  the  assignment.  The  following  remarks  of  RufEn,  C.  J.,  refer  to 
an  important  and  well-settled  distinction  upon  this  subject :  —  "If  this  had 
been  the  case  of  an  ordinary  mortgage  upon  its  face,  and  Hough  had  made 
a  formal  deed  of  assignment  of  the  equity  of  redemption  to  the  plaintiff,  he 
might  have  filed  a  bill  against  Mask  for  redemption,  without  bringing 
Hough  into  the  cause,  or  proving  the  consideration  moving  from  himself  to 
Hough,  as  the  price  of  the  equity  of  redemption.  For  a  plaintiff  need  not 
make  a  person  a  party,  who  according  to  the  facts  alleged  in  the  bill  has  no 
interest  in  the  subject,  and,  although  it  requires  a  consideration  to  raise  a 
trust,  yet,  after  it  is  well  raised,  it  may  be  transferred,  as  against  the  trustee, 
voluntarily.  To  Mask  it  would  be  immaterial  upon  what  consideration 
Hough  might  have  assigned  it  to  the  plaintiff;  and  it  would  therefore  be 
sufficient,  in  the  case  supposed,  for  the  plaintift'to  prove  the  assignment,  on 
the  hearing.  AVe  do  not  say  that  it  would  be  so  in  this  case,  since  it  is  in 
form  not  an  assignment  of  a  clear  and  admitted  equity  of  redemption,  but 
an  assignment  of  a  covenant  or  executory  agreement  from  Mask  to  Hough 
to  convey  the  land  to  him  upon  the  payment  of  a  certain  sum.  Perhaps, 
therefore,  it  was  indispensable  in  this  case,  that  the  plaintiff  should  bring  in 
Hough,  as  well  as  the  mortgagee.  But,  admitting  that  it  was  not,  and  that 
the  plaintiff  might  have  had  a  decree  upon  a  bill  against  Mask  alone,  yet  he 
has  not  thought  proper  to  proceed  in  that  way  and  claim  a  decree  against 
the  mortgagee  upon  the  apparent  assignment  to  him,  leaving  it  to  the  as- 
signor to  assert  his  right  afterwards  in  a  bill  of  his  own,  denying  the  assign- 
ment or  its  legal  efficacy.  On  the  contrary,  the  plaintiff  has  chosen  to  pro- 
ceed against  both  the  mortgagee  and  mortgagor  ;  and  thus  lie  puts,  him- 
self, in  issue,  the  assignment  in  respect  of  both  of  those  parties,  and  is, 
consequently,  bound  to  show  one  which  is  efficacious,  and  which  the  Court 
will  specifically  uphold  against  the  assignor,  so  as  to  conclude  him  by  a 
declaration  of  the  assignment  in  the  decree  in  this  suit.  Hence  it  became 
necessary  in   the  bill  to  set  out  not  only  the  naked  fact  of  the  assignment 


524  THE  LAW  OF  MORTGAGES.         [CH.  XVIH. 

the  amount  due  on  the  mortgage,  it  has  been  suggested  that 
he  would  be  entitled  to  claim  only  the  sum  actually  paid. 
But  the  rule  seems  well  established  to  the  contrary;  except 
in  cases  of  trust,  express  or  implied,  for  the  owner,  who 
would  then  be  entitled  to  the  benefit  of  any  advantageous 
bargain  of  the  assignee.  Generally,  in  order  to  redeem,  the 
amount  due  on  the  mortgage  must  be  paid.^  In  the  case 
above  referred  to,^  Edmonds,  J.,  says :  — "  But  if  it  was  a 
loan,  and  usurious  in  its  character,  so  far  as  to  vitiate  the 
title  of  the  Life  and  Trust  Company,  as  soon  as  the  loan 
was  discharged  the  taint  would  be  removed,  and  the  mort- 
gagor would  cease  to  have  any  thing  to  complain  of.  I  am 
not  aware  that  the  prohibitions  against  usury  have  ever 
been  carried  so  far,  as  to  determine  that  an  obligation  un- 
tainted in  its  concoction  is  rendered  void,  and  the  debtor  dis- 
charged from  all  liability  upon  it  by  the  simple  fact  that  the 
owner  had  hypothecated  it  as  security  for  a  usurious  loan. 
The  relation  of  principal  and  surety  does  not  in  fact  exist 
between  Warner  and  Gouverneur's  executors.  As  between 
them,  he  is  the  debtor,  and  they  the  creditors.  It  is  only 
between  them  on  the  one  side  and  the  Life  and  Trust  Com- 
pany on  the  other,  that  the  relation  of  principal  and  surety 

1  Coote,  355 ;   Pease  v.  Benson,    28  ^  j  garb.  39. 

Maine,  336. 


from  Hough  to  Medley,  but  also  that  it  was  made  on  a  valuable  considera- 
tion. Equity  does  not  act  for  a  mere  volunteer,  but  only  for  a  real  pur- 
chaser, at  a  fair  price.  The  plaintiff  has  endeavored  to  be  such  a  purchaser. 
But  he  entirely  fails  in  the  attempt.  It  is  urged  for  him,  that  the  assign- 
ment itself  states,  that  he  had  fully  paid  and  satisfied  Hough  for  his  interest 
in  the  land,  and  that  such  an  acknowledgment  is  not  to  be  disregarded,  b»t 
must  berdeemed  sufficient  evidence  prima  facie  of  a  valuable  consideration. 
But  in  equity  there  must  be  proof  of  an  actual  consideration  ;  and  these 
general  words,  inserted  merely  as  formal  parts  of  an  instrument,  can  by  no 
means  be  admitted  as  conclusive,  that  some  valuable  consideration  was  ac- 
tually paid  or  secured,  much  less  that  an  adequate  consideration  was  paid 
or  secured."     Medley  v.  Mask,  4  Ired.  Eq.  343-345. 


CH.  XVIIT.]  ASSIGNMENT.  525 

may  be  supposed  to  exist.  When  this  bill  was  filed  that 
company  had  ceased  to  have  any  interest  in  the  mortgage. 
Even  the  quasi  relation  of  principal  and  sifrety  had  ceased 
to  exist ;  and  the  parties  had  returned  to  their  original  posi- 
tion of  debtor  and  creditor  in  a  contract  uncontaminated  by 
any  illegal  consideration.  It  is  therefore  unnecessary  to  in- 
quire, whether  the  transaction  between  Gouverneur  and  the 
Life  and  Trust  Company  was  usurious  or  not,  or  if  usurious, 
what  the  effect  would  be  upon  the  rights  or  obligations  of  the 
mortgagor.  It  is  enough  to  know  that  the  contract  which 
the  executors  are  seeking  to  enforce  is  itself  untainted  with 
any  illegality,  and  is  held  by  them  by  a  title  equally  uncon- 
taminated. For  if  they  take  as  purchasers  from  the  com- 
pany, it  was  not  illegal  to  buy  or  sell  the  seciu'ity  below  par ; 
and  if  they  retake  as  borrowers  who  have  paid  up  the  loan, 
they  have  removed  all  taint,  and  are  restored  to  their  origi- 
nal rights  as  against  the  mortgagor." 

48  a.  So  a  purchaser,  subject  to  a  mortgage,  cannot  offer 
evidence,  that  it  was  assigned  for  a  less  amount  than  was 
secured  by  it ;  and  where  he  gives  further  security  for  the 
forbearance  of  the  assignee,  the  former  mortgage  is  not  void 
from  usury,  but  the  assignee,  on  foreclosure,  must  credit  aU 
such  additions.' 

48  b.  "Where  notes,  secured  by  mortgage,  were,  with  the 
mortgage,  assigned  by  the  payee  in  payment  for  slaves  in- 
troduced into  the  State  contrary  to  law ;  held,  the  mortgage 
might  still  be  enforced  by  the  assignee.^ 

49.  It  has  been  a  question  much  discussed,  how  far  the 
assignee  of  a  mortgage  is  bound  by  the  actual  state  of  the 
account  between  the  mortgagee  and  mortgagor  at  the  time 
of  assignment ;  that  is,  whether  he  may  claim  what  appears 
to  be  due  upon  the  face  of  the  mortgage,  or  only  what  is 
really  due,  after  deducting  all  payments  and  offsets.  It  is 
held,  that  a  payment,  made  to  the  mortgagee  before  notice  of 
an  assignment,  is  good  against  the  assignee.^ 

1  Lovett  V.  Diraond,  4  Edvv.  Ch.  22.  3  Hubbard  v.  Turner,  2  McL.  519. 

2  Rowan  v.  Adams,  1  S.  &  M.  Ch.  45. 


526  THE   LAW    OF   MORTGAGES.  [CH.  XVIII. 

49  a.  If  the  mortgage  is  given  to  secure  a  negotiable  note, 
and  both  are  assigned  before  maturity  to  a  bond  fide  in- 
dorsee ;  he  tak^,  clear  of  any  equities  between  the  original 
parties.' 

50.  In  the  case  of  Matthews  v.  Wallwyn,^  Baker  having 
taken  a  mortgage  from  Matthews  for  £2,000,  which  was 
paid  by  Shepheard,  the  attorney  of  the  latter,  Matthews  gave 
Shepheard  a  bond  for  <£2,000,  and  Baker  assigned  the  mort- 
gaged estate  to  Shepheard,  who  afterwards  deposited  the 
bond  and  deed  with  Hercy,  for  j6 2,000.  Hercy  requiring 
payment,  Shepheard  applied  to  Wallwyn  for  a  loan  of  X 2,000, 
who  agreed  to  open  an  account  with  him  on  a  deposit  of  the 
securities  and  his  own  note.  The  securities  were  accord- 
ingly redeemed  from  Hercy,  and  deposited  by  Shepheard 
with  Wallwyn.  Shepheard  became  bankrupt ;  and,  under  a 
decree  of  chancery,  his  assignees  assigned  the  mortgage  to 
Wallwyn.  Matthews  had  no  notice  of  the  dealings  with 
Hercy  and  Wallwyn.  Shepheard  had  been  in  the  habit  of 
receiving  and  paying  large  sums  on  account  of  Matthews. 
Matthews  files  a  bill  against  WaUwyn  for  redemption ;  and 
it  was  stated,  that  after  settlement  of  an  account  between 
Matthews  and  Shepheard  in  October,  1794,  which  was  sub- 
sequent to  the  deposit  to  Wallwyn,  Matthews  discovered 
that  Shepheard  had  received  sums  not  accounted  for  by  him, 
and  other  sums  since  the  settlement,  which  being  deducted, 
a  considerable  balance  would  be  due  to  Matthews.  Wal- 
lwyn claimed  a  specific  lien  for  their  balance.  The  Lord 
Chancellor  stated  the  question  to  be,  whether  the  assignee 
of  a  mortgage  could  claim  whatever  appeared  to  be  due 
by  the  instrument  itself,  without  regard  to  the  state  of  the 
account  between  the  mortgagee  and  mortgagor.  He  also 
noticed  the  practice  of  conveyancers  to  make  the  mortgagor 
a  party  to  any  assignment,  in  order  to  secure  a  perfect  title  ; 
and  referred  to  the  case  of  Lunn  v.  Lodge,  of  which  he  had  a 
note.     In   that  case,  Lodge  mortgaged  to  Pitman,  who  as- 

1  Reeves  v.  Scully,  Walk.  Ch.  248.  -  4  Vcs.  118. 


CH.  XVIII.]  ASSIGNMENT.  527 

signed  to  St.  John.  The  mortgagor  and  mortgagee  having 
both  become  bankriJ^t,  the  assignees  of  Lodge  file  a  bill  in 
equity,  alleging  that  nothing  was  due  between  the  estates. 
Lord  Thurlow  ordered  the  master  to  inquire,  what  was  due 
at  the  time  of  the  mortgage  ;  what  at  the  time  of  assign- 
ment; and  what  remained  due;  and  he  reported  <£7,000 
due  from  Pitman  to  Lodge.  Held,  the  assignm^ts  should 
not  avail  against  the  estate  of  Lodge.  The  Lord  Chancel- 
lor relied  upon  this  case,  as  a  direct  authority  in  favor  of  the 
plaintiff  in  this  bill ;  decreed,  that  he  might  redeem  upon 
payment  of  the  sum  due  on  the  original  mortgage  to  Shep- 
heard ;  and  ordered  an  inquiry  by  the  master  in  the  same 
form  as  above  stated  in  the  other  case. 

50  a.  In  conformity  with  this  decision,  the  general  rule  is, 
that  an  assignee  takes  the  mortgage  subject  to  all  equities 
between  the  original  parties,  more  especially  where  he  is 
guilty  of  laches,  or  where  the  assignment  is  made  to  secure 
a  preexisting  debt.^  (t)  As  against  an  assignee  without 
notice,  the  mortgagor  has  the  same  rights  as  he  has  against 
the  mortgagee,  and  whatever  he  can  claim,  in  the  way  of 
sct-ofF  or  mutual  credit,  as  against  the  mortgagee,  he  can 
claim  equally  against  the  assignee.  If  it  is  stated  in  the 
assignment,  that  a  certain  sum  is  due  for  principal  and  in- 
terest, although  the  mortgagee  is  bound  by  the  statement, 
the  mortgagor  is  not,  unless  a  party  to  the  assignment.^ 

1  Glidden  v.  Hunt,  24  Pick.  221;  -  James  ?•.  Morey.  2  Cow.  247;  Wol- 
Clark  V.  Flint,  22  Pick.  231  ;  U.  S.  v.  cott  v.  Sullivan,  \  Edw.  402;  Norrish 
Stuiges,  Paine,  525.  v.   Marshall,    5    ]\Iad.    481  ;    Carew    v. 

Johnston,  2  Sch.  &  Lef.  296. 


(j)  But  not  to  the  latent  equities  of  strangers,  of  which  he  has  no  notice. 
2  Cow.  246.  Nor  is  he  required  for  his  own  protection  to  give  notice  of 
the  assignment  to  a  subsequent  assignee  of,  or  purchaser  from,  the  mort- 
gagee, lb.  AVhere  one  had  acquia-ed  an  equitable  right  to  the  assignment 
of  a  bond  and  mortgage,  before  an  equitable  right  of  set-off  accrued  to  the 
mortgagor;  held  immaterial,  that  the  mortgagor  was  ignorant  of  the  equi- 
table assignment,  he  not  having  parted  with  any  security  im  consequence. 
Smith  V.  Clark,  4  Paige,  Ch.  368. 


528  THE    LAW    OF   MORTGAGES.    '  [CH.  XVIII. 

50  b.  One  of  two  partners,  being  about  to  leave  the  State 
for  his  health,  assigned  to  the  other  •partner  a  bond  and 
mortgage  which  he  held  against  a  third  person.  He  died 
while  absent.  His  administrator  sued  the  surviving  partner 
for  the  amount  of  the  bond  and  mortgage.  On  a  sworn  bill, 
filed  by  the  surviving  partner,  stating  that  the  deceased  part- 
ner, when^he  left,  was  indebted  to  the  partnership  in  more 
than  the  amount  of  the  bond  and  mortgage,  and  that  it  was 
agreed  between  them  that  they  should  be  applied  to  the 
purposes  of  the  partnership,  in  the  manner  stated  in  the  bill, 
and  that  he  had  so  applied  them,  the  administrator  was  en- 
joined from  proceeding  ii\  the  suit.' 

50  c.  A  bill  against  a  bond  fide  assignee  must  allege  no- 
tice of  the  complainant's  equities  against  the  mortgagee,  in 
order  to  bind  the  defendant  by  them.^ 

51.  The  mortgagor  cannot  be  prejudiced  by  any  agree- 
ment between  the  assignee  and  mortgagee  to  increase  the 
amount  of  the  principal  due  ;  hence  the  arrears  of  interest  at 
the  time  of  assignment  cannot  generally,  without  his  concur- 
rence, be  turned  into  principal  and  tacked  to  the  mortgage. 
And  even  with  his  consent,  the  interest  cannot  with  notice 
be  tacked,  to  the  prejudice  of  other  creditors  having  a  lien  on 
the  property.^ 

52.  A  different  rule  was  formerly  adopted,  if  the  arrears 
were  actually  bond  fide  paid  by  the  assignee.  But  in  the 
case  of  Matthews  v.  Wallwyn  (4  Ves.  118,  128,)  it  is  held 
by  Lord  Loughborough,  that  as  between  the  mortgagee  and 
persons  claiming  under  him,  without  privity  of  the  mort- 
gagor, they  cannot  add  to  what  is  due,  settle  the  account,  or 
turn  interest  into  principal.*  And  it  seems  necessary,  that  a 
second  mortgagee  should  join  in  an  assignment  of  the  first 
mortgage  ;  because,  otherwise,  arrears  of  interest  cannot  be 
turned  into  principal  as  against  him.^ 


1  Williams  v.  Stevens,  1  Ilalst.  Ch.        '^  Coute,  354. 
119.  0  ■*  1  Tow.  152,  and  note. 

'■'  Cicotte  V.  Gagnier,  2  Mich.  381.  '^  Uigby  v.  Craggs,  2  Ed.  200. 


en.  XVIII.]  ASSIGNMENT.  529 

53.  In  Chambers  v.  Gold  win/  it  was  held,  that  in  general 
the  assignee  must  take  the  risk  of  the  correctness  of  the 
amount  stated  to  be  due  ;  but  if  the  mortgagor  delays  for  a 
long  time,  and  deals  with  the  assignee  without  objection, 
he  cannot  have  a  decree  to  surcharge  and  falsify,  but  must 
take  his  remedy  against  the  mortgagee. 

54.  The  doctrine,  that  an  assignee  can  enforce  the  mort- 
gage for  no  more  than  is  actually  due  between  the  mort- 
gagee and  mortgagor,  is  made  to  rest  in  part  upon  the 
ground,  that  this  would  be  the  rule  adopted  in  a  suit  at  law 
upon  the  covenant  or  bond  to  which  the  mortgage  is  collat- 
eral ;  and  the  assignee  should  stand  no  better  in  equity  than 
at  law.2 

55.  The  declarations  of  a  mortgagee,  made  before  the 
mortgage  was  due,  are  inadmissible  as  against  purchasers 
under  the  mortgage.-^ 

55  a.  A.'s  wife  joined  in  a  mortgage,  to  secure  the  pay- 
ment of  two  hundred  and  fifty  shares  of  a  bank,  to  which  A. 
had  subscribed.  The  mortgage  was  assigned  to  trustees,  by 
a  resolution  of  the  directors,  to  secure  B.  for  debts  due  to 
him  from  the  bank.  After  the  assignment,  A.  made  several 
transfers  of  stocks  which  were  refused  by  B.,  to  pay  the 
mortgage,  and  also  made  loans  to  the  bank  after  that  time. 
In  a  suit  by  the  special  receiver  of  the  bank  to  foreclose  the 
mortgage,  which  had  been  assigned  to  him  by  the  trustees, 
and  also  by  the  general  receiver  of  the  bank  ;  held,  a  banking 
corporation,  under  the  general  banking  law,  had  the  right  to 
divide  its  business,  and  appoint  separate  committees  of  its 
directors  to  the  different  departments  of  business ;  that  a 
resolution  of  the  committee  of  directors,  having  in  charge 
the  securities  and  investments  of  the  bank,  was  valid  to 
assign  a  mortgage,  and  the  ratification  of  the  resolution,  by 
the  whole  board  of  directors,  was  a  compliance  with  the 
statute  requiring  a  transfer  of  over  §1,000  to  be  made  by  a 

1  1  Smith,  252.  3  Stark  v.  BoswcU,  6  Hill,  405. 

2  Matthews  v.  Wallwyn,  4  Ves.  118. 

VOL.  I.  45 


530  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

resolution  of  a  board  of  directors  ;  that  the  assignment  at 
once  vested  the  mortgage  in  those  for  whose  benefit  it  was 
made,  and  the  beneficiary,  who  had  paid  a  valuable  and 
adequate  consideration,  and  who  did  not  appear  to  have  any 
notice  of  its  illegality,  at  once  became  the  assignee  of  the 
mortgage.;  and  that  the  set-offs,  which  A.  claimed,  as  they 
accrued  to  him  after  the  assignment,  of  which,  as  he  was 
chairman  of  the  finance  committee,  he  was  presumed  to 
have  notice,  and  arose  by  his  payment  to  the  bank,  and  not 
to  the  assignee,  could  not  be  allowed.^ 

56.  The  question  has  arisen,  how  far  the  assignee  of  a 
mortgage  is  subject  to  an  offset  on  the  part  of  the  mort- 
gagor, gi'owing  out  of  a  lease  made  by  him  to  the  mortgagee ; 
upon  which  he  would  have  had  a  valid  claim  for  rent  against 
the  mortgagee  himself.  Upon  this  subject  it  is  held,  that 
although  a  mortgagee  is  tenant  to  the  mortgagor,  in  virtue 
of  a  lease  e'xecuted  at  the  same  time  with  the  mortgage,  but 
without  any  agreement  to  connect  the  lease  and  mortgage 
inseparably,  or  that  the  rent  shall  be  secured  at  all  times  by 
taking  it  out  of  the  principal  or  interest  of  the  money  loaned ; 
the  right  to  set  off  rents  against  the  mortgage  debt  does  not 
necessarily  attach  as  an  inherent  quality  of  the  contract,  so 
as  to  prevent  an  assignment  of  the  mortgage,  with  the  usual 
effect  of  such  assignment.  The  assignee  does  not  stand 
upon  any  ground  more  favorable,  than  if  the  mortgagor  had 
permitted  his  mortgagee  to  take  possession  under  the  mort- 
gage without  a  lease ;  in  which  case,  upon  assignment  of 
the  mortgage,  the  only  equity  which  the  mortgagor  could 
claim  would  have  been,  to  set  off'  the  amount  of  rents  due  at 
the  time  of  receiving  notice  of  the  assignment.  If  a  mort- 
gagee is  suffered  to  retain  possession,  the  mortgagor,  after 
an  assignment  without  notice,  cannot  charge  the  assignee 
with  subsequently  accruing  rents.  His  remedy  is,  to  evict 
the  original  mortgagee,  or  compel  him  to  account  and  pay 
an  occupation  rent  for  the  time  he  may  thus  hold  possession 

1  Palmer  v.  Yates,  3  Simdf.  137. 


CH.  XVIII.]  ASSIGNMENT.  531 

after  assignment.  So,  in  the  present  case,  though  the  mort- 
gagor could  not  enter,  after  notice  of  the  assignment,  excent 
for  non-payment  of  rent  under  the  lease ;  yet,  by  virtue  of 
the  covenants,  he  could  have  pursued  that  and  other  legal 
remedies  for  the  recovery  of  the  possession,  or  the  rents  as 
they  fell  due.  With  these  remedies,  secured  by  express  con- 
tract, he  must  be  presumed  to  have  been  content,  till  the 
contrary  appears.  Another  ground  for  this  decision  is,  that 
if  the  mortgagor  had  distrained  for  rent,  the  assignee  of  the 
mortgagee  could  not  have  set  off  the  interest  against  such 
rent,  either  in  law  or  equity.^ 

57.  The  assignment  of  a  mortgage  involves  no  implied 
guaranty  as  to  the  amount  due  thereon.  Thus,  in  Bree  v. 
Holbech,^  an  administrator  with  the  will  annexed  found 
among  the  papers  of  the  deceased  a  mortgage,  and  assigned 
it  for  full  value,  covenanting  that  neither  the  testator  nor 
himself  had  done  any  act  to  incumber  the  mortgaged  estate. 
The  mortgage  turned  out  to  be  forged  ;  but,  as  there  was  no 
evidence  that  the  administrator  knew  it.  Lord  Mansfield 
held  that  the  purchaser  could  not  recover  back  what  he  had 
paid ;  remarking  that  the  administrator  "  did  not  covenant 
for  the  goodness  of  the  title,  but  only  that  neither  he  nor  the 
testator  had  incumbered  the  estate.  It  was  incumbent  on 
the  plaintiff  to  look  to  the  goodness  of  it."  So,  where  the 
distributee  of  an  estate  has  received  from  the  executors  the 
assignment  of  a  mortgage,  to  meet  his  share  of  the  assets, 
he  does  not  thereby  guarantee  the  sufficiency  of  the  mort- 
gaged property  to  extinguish  the  amount  for  which  it  was 
pledged,  and  become  personally  liable  to  the  executors  for 
the  nominal  excess  of  the  mortgage  over  his  proportion  of 
the  estate.  He  is  only  bound  to  use  diligence  and  good 
faith  in  the  collection  of  the  mortgage,  and  pay  over  any 
surplus,  of  its  actual  proceeds,  after  satisfying  his  own 
claims.^ 

1  Wolcott  V.  Sullivan,  1  Edw.  39'J.  ^  Hammond  v.  Washington,  1  How.  14. 

-  DoultI.  655. 


532  THE   LAW   OF  MORTGAGES.  [CH.  XVIII. 

58.  In  the  appropriation  of  the  proceeds  of  a  sheriff 's  sale, 
the  assignee  of  a  mortgage  which  has  priority  of  lien  will  be 
preferred  to  a  judgment  creditor,  who  holds  the  guaranty  of 
the  mortgagee  for  his  judgment,  though  prior  in  date  to  the 
assignment.' 

59.  To  avoid  the  inconvenience  and  hardship  of  charging 
an  assignee  with  deductions  and  discounts  of  which  he  may 
have  had  no  notice,  the  practice  has  been  recommended,  of 
making  the  mortgagor  a  party  to  the  assignment  of  the 
mortgage,  thus,  of  course,  precluding  him  from  a  denial,  that 
the  face  of  the  mortgage  exhibits  the  true  state  of  the  mort- 
gagee's claim.  Upon  this  subject  Lord  Loughborough  re- 
marks as  follows  :  "  It  was  supposed  that  in  practice  there 
is  no  occasion  to  make  the  mortgagor  a  party,  and  in  some 
cases  it  may  not  be  possible  to  make  him  a  party  to  the  as- 
signment ;  and  to  hold  that  the  assignee  of  a  mortgage  is 
bound  to  settle  the  accounts  of  the  person  from  whom  he 
takes  the  assignment,  would  tend  to  embarrass  transfers  of 
mortgages.  I  have  got  all  the  information  I  could,  and  I 
think  I  have  got  the  best.  The  result  is,  that  persons  most 
conversant  in  conveyancing,  hold  it  extremely  unfit  and 
very  rash  and  a  very  indifferent  security,  to  take  an  assign- 
ment of  a  mortgage  without  the  privity  of  the  mortgagor  as 
to  the  sum  really  due.  No  conveyancer  of  established  prac- 
tice would  recommend  it  as  a  good  title  to  take  an  assign- 
ment of  a  mortgage  without  making  the  mortgagor  a  party, 
and  being  satisfied  that  the  money  was  really  due."  ^ 

60.  An  additional  reason  for  the  course  recommended  is 
stated  as  follows  :  —  A  m.ortgagee  in  possession  being  re- 
garded in  some  sense  as  trustee,  and  therefore  accountable  in 
equity  for  the  profits,  if  he  assign  the  mortgage  without  the 
mortgagor's  consent,  he  will  be  held  accountable  for  the  sub- 
sequent profits ;  because,  having  turned  the  mortgagor  out 


1  Moore's  Appeal,  7  W.  &  S.  298.  "  Mattlicws  v.  Wallwyn,  4  Vcs.  128. 

See  1  Tow.  152. 


CH.  XYIII.]  ASSIGNMENT.  533 

of  possession,  he  is  bound  to  take  care  in  whose  hands  he 
places  the  estate.' 

61.  Chancellor  Kent  says,^  more  particularly  with  refer- 
ence to  the  recording  of  assignments  :  "  The  abuse  to  which 
these  clandestine  assignments  of  mortgages  (and  which,  in 
judgment  of  law  are  extinguished  by  merger)  are  subject, 
ought  to  impose  upon  persons  who  traffic  in  such  securities 
the  duty  of  making  their  assignments,  as  soon  as  possible, 
matter  of  record.  If  they  do  not,  it  is  their  own  fault  or  neg- 
ligence, and  they  ought  to  suffer,  rather  than  the  subsequent 
purchaser,  who  is  deceived  by  appearances,  and  has  no  notice 
or  record  to  guide  him.  I  am  more  and  more  inclined  not  to 
extend  equitable  refinements  upon  the  plain  common-law 
doctrine  of  merger.  They  never  have  been  and  never  ought 
to  be  carried  so  far  as  to  affect  a  subsequent  purchaser,  or 
judgment,  or  mortgage  creditor,  without  notice." 

61  a.  But  a  purchaser  of  mortgaged  property  does  not 
make  himself  liable  for  the  mortgage  debt,  merely  by  becom- 
ing party,  or  giving  his  assent  to  an  assignment  of  the  mort- 
gage. 

61  b.  A.,  B.  &  C.  became  entitled  to  mortgaged  property, 
unequally.  A  deed  was  executed,  reciting  that  the  mortga- 
gee had  required  payment  of  the  debt,  from  A.,  B.  and  C, 
pro  rata,  that  they  "  were  unable  to  pay  it,  and  had  applied  to 
D.  and  E.  to  advance  the  amount,  w'hich  they  had  consented 
to  do,  upon  having  repayment,  w4th  interest,  secured  as  there- 
inafter stated  ;  "  and  proceeded  to  transfer  the  mortgage  secur- 
ity to  D.  and  E.,  subject  to  redemption  on  payment  of  prin- 
cipal and  interest  by  A.,  B.  and  C  pro  rata,  on  a  day  newly- 
fixed  ;  and  A.,  B.  and  C.  covenanted  to  pay  accordingly,  and 
also  gave  a  bond  of  even  date  with  the  mortgage.  Held, 
merely  a  transfer  of  the  mortgage  ;  and  after  the  deaths  of 
A.,  B.  and  C,  their  personal  estate  was  not  liable  for  the 
debt.3 

1  Coote,  354  ;  1  Eq.  Cas.  Abr.  32S  ;        3  Hedges  v.  Ilcciges,  12  Erig.  Law  & 
1  Pow.  152.  Eq.  331. 

-  James  V.  Johnson,  6  John.  Ch.  432. 

45* 


534  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

62.  It  is  the  general,  and  probably  universal  practice,  in  the 
United  States,  to  record  or  register  the  assignments  of  mort- 
gages, as  well  as  the  mortgages  themselves.  The  question 
has  arisen,  whether  such  registration  is  equivalent  to  actual 
notice  of  the  assignment,  in  reference  to  parties  subsequently 
dealinsf  with  the  mortsrasree.  The  followins^  case  was  decided 
in  England. 

63.  In  the  case  of  Williams  v.  Sorrell,^  the  defendant  mort- 
gaged to  Clifton,  who  assigned  to  the  plaintiff  without  the 
defendant's  concurrence,  after  which  the  defendant  made 
payments  to  Clifton.  The  property  was  leasehold,  in  Mid- 
dlesex, and  the  assignment  registered.  The  assignee  files  a 
bill  for  foreclosure,  relying  upon  the  registry  as  notice  to  the 
defendant ;  but  it  was  decreed  that  he  might  redeem  on  pay- 
ment of  the  balance,  after  deducting  the  sums  paid  the  mort- 
gagee. (;•) 

64.  In  Matthews  v.  Wallwyn,^  it  was  held,  that  in  case  of 

1  4  Vcs.  Jun.  389.   ^  4  Ves.  118  ;  ace.  AVilliams  v.  Sorrell,  4  Ves.  389  ;  Coote,  441. 


(y)  A  mortgagee  assigned  his  mortgage  and  tlie  accompanying  bond  and 
warrant  to  two  trustees,  in  trust  for  the  use  of  his  daughter  and  her  children. 
Held,  payment  to  one  of  the  trustees  discharged  the  debt.  Bowes  v.  Seeger, 
8  W.  &  S.  222. 

The  Court  say,  (p.  223,)  "  Between  the  mortgagor  and  the  mortgagee,  the 
money  was  not  a  trust  fund.  It  was  an  ordinary  debt  for  the  price  of  the 
property,  on  which  the  mortgage  stood  as  a  security  ;  and  what  mattered  it 
to  the  mortgagor,  that  the  mortgagee  assigned  the  mortgage  in  trust  for  a 
stranger  ?  He  could  not  change  the  nature  of  the  original  relation,  or  in- 
crease his  debtor's  responsibility  and  risk  on  the  score  of  mispayment.  A 
purchaser  from  trustees,  knowing  that  he  must  see  to  the  application  of  the 
purchase-money,  knows  what  he  has  to  encounter  when  he  makes  his  bar- 
gain, and  he  '.akes  the  responsibility  accordingly.  But  he  incurs  no  respon- 
sibility of  which  he  was  not  apprised;  for  where  the  sale  is  for  a  breach  of 
trust,  he  is  not  afTected  by  it  if  he  knew  not  of  it.  There  was  no  trust  in 
existence  when  this  mortgage  was  executed,  and  the  assignment  did  no  more 
than  substitute  joint  creditors  for  a  single  one.  It  is  very  clear,  then,  that 
payment  to  a  joint  creditor,  of  which  his  receipt  is  evidence,  discharges  the 
debt." 


W.  XVIII.]  ASSIGNMENT.  535 

assignment,  unless  the  mortgagor  is  a  party  thereto,  any  sub- 
sequent payment  made  by  him  to  the  mortgagee  is  valid, 
though  the  land  lie  in  a  register  county. 

65.  It  was  formerly  held  in  New  York,  that  a  mortgagor 
may  make  a  valid  payment  of  the  mortgage  debt  to  the  mort- 
gagee, notwithstanding  the  registration  of  an  assignment  of 
the  mortgage,  unless  he  have  actual  notice  ;  such  registration 
being  legal  notice  only  to  those  claiming  under  a  subsequent 
transfer  from  the  mortgagee  or  his  representatives.'  But 
under  the  Revised  Statutes,  the  registration  of  an  assignment 
is  constructive  notice  of  it.-  {k) 

66.  It  has  been  held  in  Pennsylvania,  that  the  assignment 
of  a  mortgage  need  not  be  recorded.-^  {I)  In  the  same  State, 
the  certified  copy  of  the  assignment  of  a  mortgage  is  evi- 
dence* 

67.  An  assignee  takes  subject  to  the  equities  of  the  mort- 
gagor, but  not  to  latent  equities  of  his  cestids  que  trust  or  other 
persons.  Thus,  a  trustee  under  a  secret  trust  conveyed  to  his 
cestui,  and  then  mortgaged  to  one  having  notice  of  such 
conveyance.     The  mortgagee  assigned  to   one   not  having 

1  New   York   Life,   &c.   v.  Smith,   2  ^  Mott   r.   Clark,  9  Barr,  399.     See 

Barb.  Cli.  82:  2  Cow.  246.  Craft  v.  Webster,  4  Bawle,  265  ;  Por- 

^  Vanderkemp  v.  Shelton,  11  Paige,  ter  v.  Seabor,  2  Root,  146. 

28.  *  Philips  V.  Bank,  &c.,  18  Penn.  394. 


(/.)  In  Williams  v.  Birbeck,  (1  HofFtn.  Ch.  3d9,)  it  was  held  that  no  one 
is  chargeable  with  constructive  notice  of  an  instrument  from  its  being  re- 
corded, unless  the  law  requires  registration. 

In  Roberts  v.  Jackson,  11  Wend.  48.5,  Savage,  C.  J.,  says,  the  recording 
of  an  assignment  of  a  mortgage  is  not  necessary  to  its  validity;  but  that  it 
•may  be  recorded,  and  its  execution  proved  in  the  same  "way  as  a  mortgage. 

In  Williams  v.  Birbeck,  1  Hoffm.  Ch.  3.59,  the  opinion  is  expressed,  that 
since  the  Revised  Statutes,  an  assignment  of  a  mortgage  must  be  recorded, 
to  protect  the  assignee  against  a  subsequent  assignment  without  notice. 

In  Wisconsin,  (Rev.  Sts.  329,)  it  is  not  notice ;  but  the  mortgagor  may 
make  payment  to  the  mortgagee.  See  Clark  r.  Jenkins,  5  Pick.  280  ;  Pierce 
V.  Odlin,  27  Maine,  341. 

(/)  By  St.  1849,  (p.  527,)  assignments  may  be  recorded,  and  the  record 
■will  be  evidence. 


536  THE   LAW   OF   MORTGAGES.  [CH.  XvSP. 

notice,  who  re-assigned  to  another,  the  assignment  not  being 
recorded.  After  the  first  and  before  the  second  assignment, 
the  conveyance  to  the  cestui  was  recorded.  Held,  the  assignee 
was  not  affected  by  this  registry,  nor  by  notice  to  the  mort- 
gagee of  the  trust  and  conveyance.^ 

68.  The  title  of  an  assignee  may  be  impeached  by  evidence 
of  any  fraud  on  his  part,  or  to  which  he  is  privy.  Thus,  if  a 
mortgage  is,  on  its  face,  fraudulent,  an  assignee,  though  he 
take  it  in  good  faith,  stands  in  no  better  condition  than  the 
mortgagee.^ 

69.  The  assignment  of  a  bond  and  mortgage  was  obtained 
by  false  pretences,  which  constituted  a  fraud  and  felony. 
The  assignee  transferred  them  for  less  than  their  value,  and 
under  circumstances  calculated  to  put  the  second  purchaser 
on  inquiry.  Held,  the  latter  gained  no  title  to  the  securities, 
and  it  was  decreed  that  the  assignments  were  fraudulent  and 
void  as  against  the  original  holder,  and  that  the  second  pur- 
chaser should  re-assign  the  bond  and  mortgage,  and  refund 
the  amount  collected  by  him,  with  interest.^ 

70.  And  an  assignee  may  even  be  affected  by  the  unfair 
dealing  of  the  mortgagee,  though  subsequent  to  the  assign- 
ment, and  though  the  former  is  no  direct  party  to  it. 

71.  Mortgage,  conditioned  for  the  payment  of  $800  in  five 
years,  with  interest  annually ;  the  whole  debt  to  become  due 
upon  failure  to  pay  interest  when  payable.  The  mortgagee, 
having  assigned  the  mortgage,  and  guaranteed  its  payment, 
shortly  before  an  instalment  of  interest  fell  due,  informed  the 
mortgagor  of  the  assignment,  but  not  of  the  assignee's  resi- 
dence, and  the  mortgagor,  unable  to  find  the  assignee,  made  a 
tender  to  the  mortgagee,  who  refused  it.  Upon  a  bill  to  fore^ 
close,  brought  by  tlie  assignee,  held,  the  tender  was  sufficient 
to  prevent  a  forfeiture,  or  at  least  to  justify  a  stay  of  proceed- 
ings, upon  payment  of  the  sum  due,  till  further  default ;  the 
facts  showing  a  design  on  the  part  of  the  mortgagee  and 

1  Mott  V.  Clark,  9  Barr,  .399.  »  Pcabody  z;.  Fcnton,  3  Barb.  Cli.451. 

-  Fanners'  Bank,  &c.  v.  Douglass,  11 
S.  &  M.  469. 


CH.  XVIII.]  ASSIGNMENT.  537 

assignee  to  take  an  unconscientious  advantage  of  the  mort- 
gagor, and  that  he  was  prevented  from  paying  at  the  time 
appointed  through  their  act  and  not  his  own  default.^ 

72.  To  affect  an  assignee's  title,  the  notice  of  the  mortga- 
gee's want  of  authority  to  assign  the  mortgage  must  be  clear 
and  explicit.  Thus,  a  bond  and  mortgage  were  made  by  a 
corporation  to  one  of  its  directors,  to  enable  him  to  raise 
money  for  the  corporation  by  assigning  them,  and  on  his 
representation  that  he  could  not  raise  the  money  upon  secu- 
rities running  directly  to  the  lender.  The  director  negotiated 
the  securities  for  his  own  purposes,  taking  from  the  assignee 
real  estate  therefor.  Pending  the  negotiation,  the  assignor 
exhibited  to  the  assignee  certain  certificates,  signed  by  officers 
of  the  company,  stating  that  the  securities  were  binding  upon 
the  company,  and  that  the  amount  thereof  was  due  the 
director,  but,  before  the  bargain  was  closed,  the  president  told 
the  assignee,  that  the  company  were  anxious  to  procure  the 
money  and  have  the  works  in  operation,  and  would  be  able 
to  do  it  if  they  could  get  the  money.  Held,  the  mortgage 
might  be  enforced  by  the  assignee  against  the  company.^ 

73.  How  far  notice  of  an  outstanding  title  shall  affect  one 
claiming  under  the  party  who  has  such  notice,  is  a  question 
which  has  arisen  in  England  in  various  forms.  Thus,  it  has 
been  held,  that  if  one  take  a  mortgage  by  assignment  from 
a  mortgagee  having  such  notice,  he  will  take  subject  to  the 
adverse  title  ;  that  the  assignor  cannot  transfer  a  better  title 
than  he  has  himself.  This  principle,  however,  has  been  ques- 
tioned. A  similar  question  has  been  raised,  as  to  the  right 
of  a  third  mortgagee,  taking  an  assignment  of  the  first  mort- 
gage, to  tack  it  to  his  own,  where  the  assignor  had  notice  of 
the  second  mortgage.  The  better  opinion  would  seem  to  be, 
that  tacking  would  be  allowed,  notwithstanding  such  notice.^ 

74.  The  rights  of  an  assignee  in  relation  io  foreclosure  may 
depend  upon  similar  considerations  of  notice  and  implied 

1  Noyes  v.  Clark,  7  Paige,  179.  s  Coote,  433. 

2  Van   Hook  v.    Somerville,    &c.,  1 
Halst.  Ch.  633. 


538  THE   LAW   OF   MORTGAGES.  [cH.  XVIII. 

fraud.  Thus,  it  is  held,  that  a  mortgage  may  be  assigned 
after  entry  for  the  purpose  of  foreclosure,  and  the  assignment 
will  not  necessarily  afi'ect  such  foreclosure.  But  if  made  in 
order  to  prevent  a  redemption,  or  immediately  before  the 
right  of  redemption  would  expire,  it  may  keep  the  right  of 
redemption  alive,  until  a  tender  can  be  made  to  the  assignee, 
being  regarded  in  the  former  case  as  a  fraud,  of  which  the 
party  shall  not  himself  take  advantage,  and  in  the  latter,  as 
analogous  to  the  case  of  payment,  made  to  a  mortgagee  after 
assignment,  but  before  notice  of  it.^ 

1  Peming  v.  Comings,  11  N,  H.  474. 


CH.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  539 


CHAPTER    XIX. 


VOID    AND    VOIDABLE   MORTGAGES.  —  USURY. 


1.  General   principle  as  to   avoiding 
deeds. 

2.  Usury. 

3.  What  constitutes  usury  in  a  mort- 
gage. 

14.  What  does  not  constitute  usury. 

22.  Statement  of  questions  arising  in 
relation  to  usurious  mortgages. 

24.  When   the  sum  legally  due  may  \  judgment,  &c 
be  recovered.  |      44.  Form  of  pleading  usury. 

2.5.  Distinction    between   a    bill   for  I      46.  Evidence  —  parol  evidence. 


foreclosure,  and  a  bill  to  redeem,  in 
relation  to  usury. 

28.  What  parties  may  be  affected  by 
usury  in  a  mortgage. 

31.  What  parties  may  avail  them- 
selves of  such  usury. 

38.  What  will  preclude  a  mortgagor 
from  setting  up  usury  ;  effect  of  a  prior 


1.  In  many  respects,  a  mortgage  is  not  distinguishable, 
with  reference  to  the  circumstances  which  render  it  void  or 
voidable,  from  an  absolute  deed.  Of  course,  however,  this  is 
not  universally  true.  A  mortgage,  though  in  form  a  convey- 
ance of  land,  is  for  many  purposes  a  mere  executory  contract, 
like  the  personal  obligation  which  it  accompanies,  and  there- 
fore admits  o%Tiany  defences  or  exceptions,  which  cannot  be 
applied  to  absolute,  executed  conveyances. 

2.  Of  this  nature  is  usury,  which  cannot  exist  in  connec- 
tion with  an  absolute  sale  of  land  for  a  certain  price,  however 
excessive,  but  is  a  natural  incident  to  conditional  convey- 
ances, made  as  security  for  loans  of  money. 

3.  In  regard  to  the  question,  what  constitutes  usury,  'there 
is  no  substantial  difference  between  morta^aofes  and  other 
obligations  or  securities.  It  would  be  foreign  from  the  plan 
of  the  present  work,  to  go  minutely  into  all  the  distinctions 
upon  this  subject.  Some  of  the  decisions  relating  particu- 
larly to  mortgages  are  here  subjoined.  In  many  of  the  States, 
by  virtue  of  express  statutes,  usury  no  longer  renders  any 
securities  absolutely  void,  but  merely  involves  certain  forfeit- 
ures of  a  portion  of  the  amount  promised.     Of  course  those 


540  THE    LAW   OF   MORTGAGES.  [CH.  XIX. 

alterations  of  the  law  apply  as  well  to  mortgages  as  to  other 
obligations,  (a) 

4.  A  ctionon  a  promissory  note.  Defence,  that  the  plain- 
tiff loaned  to  the  defendant  $800,  and  received  as  security  an 
absolute  deed  of  a  piece  of  land  of  much  greater  value,  with 
an  agreement  that  the  defendant  might  redeem  it  by  repay- 
ment of  the  loan  with  12  per  cent,  interest,  and  should  remain 
in  possession  of  the  land  and  pay  therefor  $48  per  annum, 
being  the  simple  interest,  as  rent,  for  which  rent  the  note 
was  given.  Held,  the  transaction  was  usurious  and  the  note 
void.^  So  one  person,  through  an  agent,  applied  to  another 
for  a  loan,  at  15  per  cent,  interest,  to  be  secured  by  mortgage. 
The  party  applied  to  declined  taking  a  mortgage,  but  pro- 
posed to  pm-chase  the  property  for  the  sum  named,  and  let  it 
to  the  other  for  a  rent  equivalent  to  such  interest,  with  the 
privilege  of  redeeming  by  payment  of  the  sum  advanced,  and 
of  the  rent.  The  proposition  was  accepted,  a  deed  made, 
and  a  lease  taken  back,  in  the  terms  above  stated.  Held,  it 
was  a  question  for  the  jury,  whether  the  transaction  was  a 
real  sale,  or  only  designed  to  cover  a  usurious  loan.^ 

5.  A  mortgage  made  to  the  indorsee  of  a  usurious  note,  to 
secure  it,  is  void,  though  he  had  no  notice  of  the  usury  at 
the  time  of  indorsement ;  especially  if  at  the  making  of  the 
mortgage  he  had  such  notice.^ 

6.  Bill  to  foreclose  a  mortgage,  which  was  made  as  secu- 
rity for  a  bond  of  $5,000  and  interest.  The  defendant 
answered,  that  he  received  from  the  plaintiff,  for  the  bond 
and  mortgage,  two  checks  for  $4,G58,  payable  in  six  months, 
without  interest,  his  own  note  for  $341.10  principal  and  in- 
terest, and  ninety  cents  in  cash  ;  all  of  which  allegations,  ex- 

1  MitcliLll  V.  Preston,  5  Day,  100.  3  Morgan  v.  Tipton,  3  McL.  339. 

'■^  Tyson  v.  Kickard,  3  liar.  &  J.  109. 


(a)  As  to  tbe  ([uestion  of  usury  in  the  assignment  of  a  mortgage,  see  Mum- 
ford  V.  American,  &c.,  4  Comst.  4G3  ;  U.  States  Dig.  1852,  "  Usury." 


CH.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES. USURY.  541 

cept  the  last,  were  proved.    Held,  the  answer  was  substantially- 
established,  and  the  transaction  usurious.' 

7.  The  holder  of  a  usurious  mortgage  indorsed  upon  it  an 
amount  equal  to  the  sum  included  in  it  for  usury,  with  the 
assent  of  the  mortgagor.  Held,  the  mortgage  was  void,  not- 
withstanding such  indorsement.^ 

8.  It  has  been  held,  that  an  agreement  to  set  the  profits  of 
the  estate  against  the  interest  of  the  loan  is  usurious,  if  such 
profits  exceed  the  legal  rate  of  interest.^  • 

8  a.  Mortgage,  to  secure  the  loan  of  $3,000,  without  any 
agreement  about  interest.  The  mortgagee  let  the  premises 
to  the  mortgagor  at  the  annual  rent  of  $270.  Held  to  be  an 
agreement  for  usurious  interest.*  {h) 

9.  Land  was  conveyed  for  a  consideration  much  less  than 
its  value,  and  to  be  reconveyed  upon  payment  of  the  money 
loaned,  with  usurious  interest.  Held,  this  Avas  a  security  for 
the  payment  of  money,  with  usurious  interest,  and  not  an 
actual  payment  ;  and  that  the  statutory  penalty  was  not 
incurred.^ 

10.  In  New  York,  a  statute  provided,  that  all  bonds,  &c., 
whereupon  or  whereby  there  shall  be  reserved,  &c.  or  secured, 
over  7  per  cent.,  should  be  utterly  void.  Held,  a  mortgage 
taken  on  a  loan  of  money,  including  a  former  usurious  loan, 
was  void,  the  usury  destroying  the  whole  security  ;  and  that 
an  action  of  ejectment  could  not  be  maintained  for  the  land 
by  an  assignee  of  the  mortgage.*^ 

11.  Sts.  2  and  3  Vict.  c.  37,  §  1,  enabled  parties  to  contract 
for  more  than  5  per  cent.,  where  the  sum  lent  or  forborne  was 

1  Lane  v.  Losee,  2  Barb.  56.  *  Gordon  v.  Hobart,  2  Story,  243. 

2  Miller  v.  Hull,  4  Dcnio,  104.  ^  Tliomes  v   Cleaves,  7  Mass.  361. 

3  Robertson  v.  Campbell,  2  Call,  354.        *^  Jackson  v.  Packard,  6  Wend.  415. 


(h)  The  only  relief  to  which  a  mortgagor,  in  such  case,  is  entitled,  is  to  have 
the  rate  of  interest  cut  down  to  the  legal  rate  ;  and  the  assignee  of  the  mort- 
gagor is  not  entitled  to  be  placed  in  a  better  situation,  if  he  is  entitled  to  any 
relief;  concerning  wliich,  qucere.     Gordon  i\  Ilobart,  2  Story,  243. 

VOL.  I.  46 


542  THE   LAW   OF   MORTGAGES.  [CH.  XIX, 

over  XIO,  but  with  a  proviso  that  it  should  not  apply  to  the 
loan,  &c.,  of  money  upon  security  of  any  lands,  tenements, 
&c.  In  Hodgkinson  v.  Wyatt,'  this  proviso  was  held  appli- 
cable to  a  case,  where  the  security  consisted  in  an  equita- 
ble mortgage  by  deposit  of  title-deeds  to  leasehold  property. 

12.  In  Bush  V.  Livingston,^  a  bond  and  mortgage  were 
given  for  $6,000,  and  assigned  by  the  mortgagee,  by  the  pro- 
curement of  the  mortgagor,  nominally  for  the  whole  sum, 
and  under  an  agreement  that  they  were  to  be  available  to 
the  assignee  for  the  $6,000  and  interest,  but  upon  which  he 
had  paid  only  $5,600,  the  remaining  $400  being  intended  as 
a  bonus  for  advancing  the  money.  The  assignee  filed  his 
bill  of  foreclosure  against  the  mortgagor  and  his  assignee  in 
bankruptcy,  and  the  answer  set  up  usury  as  a  defence.  Held, 
the  mortgage  was  valid  in  the  hands  of  the  plaintiff  to  the 
extent  of  $5,600  and  lawful  interest ;  and  his  recovery  upon 
it  was  restricted  accordingly,  the  transaction  being  a  hard 
and  unconscionable  advantage  taken  by  the  lender  of  the 
mortgagor. 

13.  Bill  in  equity  to  foreclose  a  mortgage,  conditioned  that 
the  mortgagor  should  pay  the  mortgagee,  the  plaintiff,  the 
interest  of  8  per  cent,  upon  $1,000  of  eight  per  cent,  stock 
loaned  by  the  plaintiff  to  the  defendant,  and  should  further 
pay  him  said  sum  of  $1,000.  Plea,  the  statute  of  usury, 
alleging  that  it  was  a  loan  of  money  and  not  of  stock.  It 
appeared  in  evidence,  that  the  plaintiff  authorized  another 
person  to  sell  $1,000  of  eight  per  cent,  stock,  which  he  did 
through  the  agency  of  the  defendant,  who  received  the  money. 
The  plaintiff  having  endeavored  without  success  to  get  from 
the  defendant  either  the  stock  or  money,  it  was  finally  agreed 
that  the  defendant  should  be  considered  responsible  for  the 
stock,  and  give  a  mortgage  to  secure  repayment  of  it  and 
8  per  cent,  interest.  Held,  the  contract  was  usurious,  and 
the  mortgage  void.^ 

1  4  Ad.  &  Ell.  (N.  S.)  749.  ^  DcButt?  v.  Bacon,  6  Crancli,  252. 

'^  2  Caincs's  Cas.  in  Err.  G6. 


CH.  XIX,]      VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  543 

13  a.  A  bank  may  take  a  mortgage  for  a  debt  due,  with 
7  per  cent,  interest,  (that  being  the  legal  rate,)  notwithstand- 
ing it  is  prohibited  by  its  charter  from  taking  "  more  than 
6  per  cent,  per  annum,  in  advance,  on  its  loans  or  dis- 
counts." ^ 

14.  A  mortgage  made  in  Connecticut  for  7  per  cent,  inter- 
est, to  indemnify  the  mortgagee  against  an  obligation  given 
in  New  York  for  7  per  cent.,  is  not  usurious.- 

14  h.  A.  made  a  mortgage  of  lands  in  Connecticut,  where 
he  resided,  to  B.,  as  security  for  a  bond  to  him,  and  subse- 
quently C.  paid  the  bond,  and  took  an  assignment  of  the 
mortgage.  Held,  A.  could  not  redeem,  without  paying  to  C. 
the  sum  actually  advanced  by  him,  and  7  per  cent,  interest, 
being  the  legal  interest  of  the  State  in  which  the  land  lay 
and  the  mortgagor  resided.^ 

15.  Notes  were  made  in  Massachusetts,  but  purported  to 
be  made  in  Illinois,  and  were  secured  by  mortgage  of  land 
in  Illinois.  To  a  scire  facias  brought  for  foreclosure,  the  de- 
fendant set  up  as  a  defence  usury  under  the  laws  of  Massa- 
chusetts. Held,  the  forfeiture  provided  by  those  laws  affected 
the  remedy  only,  and  could  not  be  enforced  in  Illinois.* 

15  a.  Where  A.,  living  in  New  York,  sold  to  B.,  also  living 
in  New  York,  a  tract  of  land  in  New  Jersey,  and  took  his 
bond  for  part  of  the  consideration  money,  with  7  per  cent, 
interest,  (the  legal  rate  in  New  York,)  and  his  mortgage  on 
the  lands  conveyed,  to  secure  the  bond  ;  held,  the  mortgage 
was  not  usurious,  though  the  papers  were  exchanged  in  New 
Jersey  at  the  proper  record  office,  they  having  been  executed 
and  acknowledged  in  New  York,  and  a  sufficient  reason  be- 
ing shown  for  not  exchanging  them  there.^ 

15  h.  Mortgage,  it)  secure  a  certain  sum  of  money  at  a 
certain  time,  with  legal  interest,  and  an  agreement  that,  if  the 
principal  and  interest  should  not  be  punctually  paid,  the  land 

1  Bailey  v.  Murphy,  Walk.  Ch.  424.  +  Sherman  v.  Gassett,  4  Gilm.  521. 

-  Niehuls  v.  Cosset,  1  Root.  294.  ^  Blydenburghy.Cotheal,  1  Hulst.  Ch. 

"  Mallory  v.  Aspinwall,  2  Day,  280.  631. 


544  THE   LAW   OF   MORTGAGES.  [CH.  XIX. 

should  be  sold  to  pay  the  same,  with  five  per  cent,  damages 
thereon,  and  all  costs.     Held,  the  contract  was  not  usurious.' 

15  c.  In  a  negotiation  for  the  sale  of  land,  the  seller  was 
willing  to  take  $10,000  in  cash,  but,  the  person  proposing  to 
buy  being  unable  to  pay  cash,  it  was  agreed  that  a  deed, 
and  a  bond  and  mortgage  for  $12,000,  payable  at  a  future 
time  with  interest,  should  be  executed,  to  remain  in  the  sell- 
er's hands,  until  he  could  negotiate  a  sale  of  the  bond  and 
mortgage,  for  a  sum  equal  to  the  price  he  asked  in  cash  for 
the  land,  and  the  deed  then  to  be  delivered.  The  papers 
were  executed  accordingly,  the  bond  and  mortgage  after- 
wards sold  for  $10,000  cash,  and  the  deed  delivered  at  the 
same  time.  Held,  this  transaction  was  not  usurious,  and 
the  bond  and  mortgage  were  a  valid  security  for  the  sum  of 
$12,000.2 

15  d.  Such  a  transaction,  it  seems,  does  not  differ  from  the 
ordinary  case  of  asking  one  price  in  cash  for  the  property, 
and  a  higher  price  on  credit,  with  the  further  condition,  that 
the  sale  is  not  to  be  effected,  until  the  security  taken  for  the 
credit  price  can  be  sold  for  a  sum  of  money  equal  to  the 
cash  price.^ 

16.  Mortgage,  payable  in  small  annual  instalments,  which 
were  not  due.  The  mortgagor  advanced  $1,400  to  the  mort- 
gagee upon  the  application  of  the  latter,  under  an  agree- 
ment that  he  would  apply  and  indorse  $2,100  as  a  payment 
on  the  mortgage.  Held,  this  was  not  a  loan  nor  forbearance, 
and  therefore  not  usurious  ;  and  that  the  agreement  was  for 
good  consideration  and  not  unconscionable.* 

17.  A  mortgage  on  a  loan  of  $700,  to  be  paid  in  ten  years, 
with  interest  at  the  end  of  that  time,  is  not  usurious,  though 
in  addition  to  the  interest  the  mortgagee  is  to  have,  free  of 
rent,  the  use  of  an  acre  of  the  land,  worth  $8  per  year.^ 

18.  The  purchaser  at  a  master's  sale  procured  the  convey- 

1  Gamhril  v.  Rose,  8  Blackf.  140.  *  \Vv^\\icvv.  Stall,  3  Samlf.  Cli.  608. 

'■2  Brooks  V.  Avery,  4  Comst.  225.  ''  Fox  v.  Lipe,  24  Wend.  164. 

8  Ibid. 


CH.  XIX.]      VOID   AND    VOIDABLE   MORTGAGES. — USURY.  545 

ance  to  be  made  to  trustees,  to  secure  the  payment  to  a  third 
person  of  a  loan  alleged  to  be  usurious.  The  purchaser  and 
the  trustees  subsequently  sold  the  premises,  and  took  back  a 
mortgage  for  part  of  the  price,  for  the  benefit  of  the  lender, 
to  secure  the  loan.  Held,  though  the  loan  were  usurious,  the 
bond  and  mortgage  were  still  valid.' 

19.  One  holding  a  mortgage  of  a  large  tract,  payable  at  a 
distant  day,  with  6  per  cent,  interest,  at  the  request  of  the 
mortgagor  took  from  him  thirteen  distinct  mortgages  on 
separate  portions,  for  the  same  amount  in  the  whole,  with 
7  per  cent,  interest,  payable  at  the  same  time,  thereupon  can- 
celKng  the  old  mortgage,  and  receiving  from  the  mortgagor 
^500  for  granting  the  accommodation.  Held,  as  there  was 
no  loan  or  forbearance,  the  transition  was  not  usurious.- 

19  b.  A.,  having  made  a  deed  of  trust  to  secure  a  debt, 
under  which  a  sale  of  the  land  was  advertised,  agreed  with 
B.  that  B.  should  bid  the  amount  of  the  debt,  and,  if  he  be- 
came the  purchaser,  that  B.  should  resell  the  land  to  A.,  on 
his  paying,  within  twelve  months,  a  sum  afterwards  to  be 
agreed  upon,  it  being  understood  that  the  sum  should  be 
sufficient  to  fully  reimburse  B.,  including  his  trouble  and 
expenses.  B.  became  the  purchaser.  Held,  the  transaction 
was  not  usurious,  and  the  estate  became  absolute  in  B.,  on 
A.'s  failure  to  pay  within  twelve  months,  and  the  sum  not 
being  fixed  within  that  time." 

19  c.  A.  mortgaged  certain  hereditaments  to  B.  for  £7,500, 
and  his  equity  of  redemption  to  C.  for  £5,000.  C.  after- 
wards agreed  to  take  a  transfer  of  both  mortgages,  and  to 
advance  a  sum  of  £12,000  for  that  purpose,  at  interest  at  £5 
per  cent.,  reducible  on  prompt  payment  to  £4  per  cent.  The 
transfer  of  the  first  mortgage  not  being  ready  to  be  executed, 
through  the  default  of  A.,  at  the  time  appointed,  C.  advanced 
the  £5,000  at  once,  and  took  a  transfer  of  the  second  mort- 


1  Stoncy  V.  American,  &c.,  11  Paige.         -  Necfus  v.  Vanderveer,  3  Sandf.  Ch. 
635.  268. 

3  Jones  i\  Hubbard.  6  Call,  211. 

46* 


546  THE   LAW    OF   MORTGAGES.  [CH.  XIX. 

gage ;  at  the  same  time  A.  signed  a  memorandum,  acknowl- 
edging that  the  remainder  of  the  money  was  ready,  (which 
was  the  case,)  and  agreeing  that  interest  on  the  first  mort- 
gage, when  transferred  to  C,  should  run  as  from  the  date  of 
that  agreement,  and  that  the  deed  of  transfer  of  the  first 
mortgage  should  bear  date  on  that  day.  The  deed  of  trans- 
fer of  the  first  mortgage  was  not,  in  fact,  executed,  nor  the 
X 7,500  paid  over  to  B.,  until  nearly  six  weeks  afterwards. 
Held,  the  transaction  was  nevertheless  good  under  the  statute 
of  Anne.^ 

20.  A  mortgage,  made  for  the  purpose  of  being  assigned 
upon  a  loan,  and  accordingly  assigned  for  a  loan  at  more 
than  legal  interest,  is<not  usurious  as  between  a  subsequent 
purchaser  and  the  mortgagor,  unless  the  former  knew  the 
purpose  for  which  it  was  made,  at  the  time  of  the  purchase.^ 

21.  The  validity  of  a  mortgage  and  the  liability  of  a  mort- 
gagor are  not  affected  by  its  transfer  as  security  for  an  usuri- 
ous loan.  Payment  of  such  loan  relieves  the  mortgage  of  all 
taint.^  . 

22.  In  addition  to  the  question,  what  constitutes  usury  in 
a  mortgage,  numerous  cases  have  arisen,  both  in  law  and 
equity,  involving  the  inquiries,  whether  a  mortgage  should 
be  avoided  for  usury,  only  as  against  a  mortgagee,  seeking 
to  enforce  it  by  foreclosure  or  otherwise,  or  in  favor,  also,  of 
the  mortgagor,  bringing  a  suit  to  redeem  ;  what  parties  may 
avail  themselves  of  this  ground  of  avoidance  ;  and  how  far 
the  original  defect  is  cured  by  legal  and  judicial  proceedings, 
treating  the  mortgage  as  a  valid  security. 

23.  In  Massachusetts,  it  has  been  suggested  as  a  doubtful 
point,  whether,  in  a  bill  to  redeem,  the  plaintifT  can  legally 
seek  to  deduct  penalties  for  usury  from  the  amount  due  on 
the  mortgage.* 

23  a.  In  New  Hampshire,  in  a  writ  of  entry  upon  a  usuri- 

1  Long  V.  Storic,  10  Eng.  Law  &  Eq.  ••  l^oltiiison    v.    Guild,   12    Met.  328. 

182.  Sec  Gordon  v.  llobart,  2  Sumu.  402; 

^  Jackson  v.  Colden,  4  Cow.  2GG.  2  Story,  243. 
'^  Warner  v.  Gouverncur,  1  Barb.  30. 


CH.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES. USURY.  547 

ous  mortgage,  the  defendant  may  claim  the  statutory,  tiiple 
deduction  from  the  debt,  and  the  conditional  judgment  will 
be  for  the  balance  only.' 

23  b.  So  though  the  declaration  does  not  show  the  action 
to  be  upon  a  mortgage.^ 

24.  In  Pennsylvania,  a  usurious  contract  is  not  absolutely 
void,  (c)  Hence  a  mortgagee,  in  such  case,  may  recover 
upon  scire  facias  the  amount  loaned,  with  legal  interest. 
The  Court  say  :  —  "It  would  be  unwarrantable  to  unsettle 
the  law,  merely  because  a  general  principle  has  lately  been 
established,  that  courts  of  justice  will  not  give  redress  on  any 
contract  which  has  been  made  contrary  to  law.  To  say  that 
this  contract  was  so  contrary  to  the  act  of  assembly,  as  to 
make  the  recovery  of  the  just  debt  and  interest  improper,  is 
begging  the  question,  and  directly  in  opposition  to  the  con- 
struction established  by  practice,  decision,  and  general  acqui- 
escence." 2 

25.  In  New  York,  in  the  case  of  Fanning  v.  Dunham,^  it 
was  held,  that  if  a  lender  of  money  on  a  usurious  contract 
seeks  to  enforce  his  securities  in  a  court  of  equity,  and  the 
usury  is  set  up  as  a  defence,  the  securities  will  be  declared 
void,  and  ordered  to  be  delivered  up  and  cancelled.  But 
where  the  lender  has  recovered  a  judgment  at  la\v  on  a  bond 
and  warrant  of  attorney,  or  is  proceeding  to  foreclose  a  mort- 
gage by  virtue  of  a  power  of  sale  under  the  statute,  without 
the  aid  of  a  court  of  equity  ;  upon  a  bill  for  relief  filed  by  the 
borrower  against  the  judgment  or  other  legal  securities,  on  the 
ground  of  usury,  he  cannot  have  such  relief  without  paying 
or  offering  to  pay  the  sum  lawfully  due,  whether  the  usury 
be  established  by  proof,  or  admitted  in  the  answer.     In  this 

1  Brifrgs  r.  Sholes.  14  X.  H.  262.  *  5  John.  Ch.  122  ;  .ace.  Ballinger  r. 

-  Ibkl.  '  Edwards.   4  Irud.   Eq.   449  ;  Woodard 

3  Turner  v.  Calvert,  12  S.  &  R.  46,  47.        v.  Fitzpatrick,  9  Dana,  117. 


(c)  In  Indiana,  a  usurious  mortgage  is  valid  for  the  amount  of  the  prin- 
cipal debt.     Grimes  v.  Doe,  8  lilackf  3  71. 


548  THE  LAW   OF  MORTGAGES.  [CH.  XIX. 

case,  Chancellor  Kent  goes  into  an  elaborate  examination  of 
the  authorities  upon  the  subject  of  Y?LCB,tmg  judg-ments  upon 
the  ground  of  usury.  He  add-s:^  —  "The  same  objection 
and  difficulty  occurs  in  the  case  of  a  mortgage  taken  to  secure 
an  usurious  loan,  with  a  power  to  sell  annexed  to  it,  by  means 
of  which  the  creditor  forecloses  his  mortgage  by  an  act  in 
pais,  without  calling  upon  any  Court  to  assist  him.  The 
debtor  has  no  relief  in  that  case,  but  by  applying  to  this 
Court,  and  then  he  must  comply  with  the  terms  of  paying 
what  w^as  actually  advanced.  He  deprives  himself,  in  that 
case,  by  the  power  to  sell,  as  he  does  in  the  other  by  his 
warrant  of  attorney  to  confess  judgment,  of  an  opportunity 
to  appear  in  the  character  of  defendant  and  plead  the  usury. 
These  are  cases  in  which  the  party  by  his  own  voluntary  act 
deprives  himself  of  his  ability  to  inflict  upon  the  creditor  the 
loss  of  his  entire  debt.  The  party  is  in  the  same  situation,  if 
instead  of  resisting  the  usurious  claim,  he  pays  it.  He  can- 
not then  expect  assistance  to  recover  back  more  than  the 
usurious  excess.  If  the  warrant  of  attorney  or  the  power  to 
sell  were  procured  by  fraud,  or  surprise,  or  accident,  that 
would  form  a  distinct  head  of  relief,  and  is  nowise  applicable 
to  the  case.  And  perhaps  it  is  sufficient  for  the  purposes  of 
public  justice  and  public  policy,  that  the  law  has  enabled  a 
debtor,  in  every  case  in  which  he  does  not  of  his  own  accord 
deprive  himself  of  the  means,  to  plead  the  statute  in  discharge 
of  his  usurious  contract,  and  of  his  obligation  to  pay  even 
what  was  received,  and  that  in  all  cases  he  can,  by  paying 
the  actual  principal  received,  and  the  lawful  interest,  be 
relieved  from  the  usurious  exaction." 

26.  Bond  and  mortgage  for  $10,000.  The  mortgagees 
pressed  a  foreclosure,  and  had  obtained  a  decree.  The  mort- 
gagor procured  from  a  third  person  an  advance  of  $8,000,  and 
himself  paid  the  balance  to  the  mortgagees.  The  bond, 
mortgage,  and  decree,  were  assigned  by  the  mortgagees  to 
the  person  advancing  the  money,  who  afterwards  pressed  a 

'  5  Jolni.  Cli.  122;  iicc.  Balliiiycr  v.  Edwards,  4  Ired.  Eq.  449. 


en.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  549 

sale  under  the  decree  for  the  whole  $10,000  and  interest. 
Upon  an  order  on  him  in  favor  of  an  assignee  of  the  mort- 
gagor, to  show  cause  why  an  injunction  should  not  issue,  and 
the  sale  be  stayed ;  the  order  was  made  absolute  for  an 
injunction,  unless  the  defendant  would  stipulate  to  accept 
the  $8,000  with  interest ;  upon  non-payment  of  which  the 
sale  should  proceed.' 

27.  In  North  Carolina,  a  mortgagor  who  has  not  paid  the 
amount  of  the  loan  admitted  to  be  due,  nor  brought  it  into 
court,  cannot  enjoin  the  mortgagee  from  collecting  the  debt 
or  bringing  ejectment  for  the  land,  although  the  mortgagor 
alleges  that  tlie  contract  was  usurious.  Thus,  the  plaintiff 
borrowed  from  the  defendant  $1,000,  for  which  he  was  to 
pay  10  per  cent,  annually,  by  way  of  interest,  and,  to  cover 
the  usury,  the  title  to  certain  lands,  which  the  plaintiff  had 
bought,  but  not  paid  for,  was  conveyed  to  the  defendant ;  and 
the  parties  entered  into  a  covenant,  that  the  plaintiff  should 
lease  the  land,  from  year  to  year,  so  long  as  he  saw  proper, 
at  the  annual  rent  of  $100,  and  was  to  have  the  fee-simple, 
whenever  he  paid  the  $1,000,  together  with  the  rent.  The 
plaintiff  paid  the  agreed  sum  for  several  years,  when  he  failed 
to  pay,  and  the  defendant  brought  a  suit,  and  recovered  judg- 
ment for  $233  rent;  and  also  an  action  of  ejectment,  in 
which  he  recovered  judgment;  and  was  about  to  sue  out 
execution  upon  both  judgments.  The  plaintiff  brings  a  bill 
in  equity  for  an  account,  and  a  conveyance  in  fee  upon  pay- 
ment of  $1,000,  and  6  per  cent,  interest,  deducting  the  sums 
already  paid ;  and  for  an  injunction  against  both  said  execu- 
tions. Held,  as  the  plaintiff  was  in  arrear  some  six  or  seven 
hundred  dollars,  after  allowing  all  credits,  the  bill  could  not 
be  maintained." 

27  a.  In  Vermont,  payments  made  on  a  usurious  contract, 
to  an  amount  within  that  of  the  debt  and  legal  interest,  will 
be  treated  in  equity  as  payments  generally,  and,  in  the  case 

1  Pearsall  v.  Kingsland,  3  Edw.  195.  -  Cunningham  v.  Davis,  7  Ired.  Eq.  5. 


550  THE   LAW   OF  MORTGAGES.  [cH.  XIX. 

of  a  bill  to  foreclose  a  mortgage,  may  be  insisted  on  by  way 
of  answer.^ 

27  b.  In  Maryland,  where  a  party  goes  into  a  court  of 
equity  to  ask  relief  against  a  usurious  mortgage  or  contract, 
he  must  do  equity  by  paying  or  offering  to  pay  the  principal 
sum  with  legal  interest.^ 

27  c.  Where  the  creditor  is  compelled  by  the  Court  to  file 
his  mortgage  before  it  is  due,  and  placed  in  his  present 
position  by  act  of  laiv,  he  cannot  be  regarded  as  the  actor ; 
but  the  subsequent  mortgagees,  who  interpose  the  plea  of 
usury,  and  demand  relief  against  him  on  this  ground,  are  the 
actors,  and  their  case  is  fully  within  the  spirit,  if  not  the 
letter,  of  the  rule,  that  requires  equity  first  from  them.^ 

27  d.  It  is  competent  for  a  mortgagor,  of  whom  usury  has 
been  exacted,  to  waive  it,  in  whole  or  in  part.* 

27  e.  Conveyance  to  secure  a  usurious  loan ;  the  grantor, 
at  his  election,  to  repay  at  a  certain  time  ;  otherwise,  the 
grantee  to  have  his  election  to  purchase.  Held,  for  want  of 
mutuality,  the  grantee  'could  not  enforce  this  contract  in 
equity,  but  the  grantor  might  redeem  on  repaying  the  loan 
with  interest ;  otherwise,  a  sale  to  be  decreed.^ 

27/.  In  Georgia,  a  mortgagor  may  have  relief  in  equity 
from  a  usurious  contract,  although  he  might  dispute  the 
amount  due  at  common  law,  and  though  the  bond  and  mort- 
gage have  been  assigned ;  yet,  if  the  bill  alleges  that  the  as- 
signee had  notice  of  the  usury,  and  that  the  assignment  was 
merely  colorable,  the  Court  will  grant  an  injunction  to  stay 
proceedings  on  the  execution  issued  by  virtue  of  the  fore- 
closure of  the  mortgage,  where  the  allegation  of  usury  is  not 
refuted.*' 

28.  With  regard  to  the  parties  whose  title  may  be  im- 
peached by  usury  in  a  mortgage  ;  it  has  been  held,  that  the 
lessee  of  an   assignee  of  a  mortgage,  obtained  on  usurious 

1  Ward  V.  Sharp,  15  Verm.  115.  '^  Fcnwick  v.  Ratcliffc,  G  Monr.  154. 

2  Wilson   V.    llardcsty,    1    Maryland         f*  15iitt  t>.  Pjoudurant,  7  Monr.  421. 
Ch.  Dccis.  G6.  c  ^yinn  v.  Ilam,  Cliarl.  K.  M.  70. 

'■^  Carter  v.  Dennison,  7  Gill,  157. 


CH.  XIX.]      VOID   AND   VOIDABLE   MORTGAGES.  —  USURY.  551 

consideration,  without  notice  of  the  usury,  is  a  bond  fide  pur- 
chaser, and  not  affected  by  such  usury.^ 

29.  In  Jackson  v.  Henry ,2  it  was  held,  that  a  bond  fide  pur- 
chaser, [d)  under  a  sale  made  by  a  power  of  attorney  con- 
tained in  a  mortgage,  is  not  affected  by  usury  in  the  mortgage 
debt ;  such  sale  being  equivalent  to  a  foreclosure  and  sale 
under  a  decree  in  equity.  The  statutory  provision,  that 
usurious  securities  shall  be  void,  applies  only  between  the 
original  parties,  where  the  suit  is  brought  upon  the  security 
itself,  and  not  to  a  new  contract  founded  upon  it,  to  which 
an  innocent  person  is  party.  Kent,  C.  J.,  says  :  ^  —  "  The 
notice  given  by  the  advertisement  is  intended  for  the  party 
as  well  as  for  the  world,  and  he  has  an  opportunity  to  apply 
to  Chancery,  if  he  wishes  to  arrest  the  sale  on  the  ground  of 
usury ;  and  the  statute  likewise  gives  him  his  remedy  by 
action.  If  he  stands  by  and  suffers  the  sale  to  go  on,  and  an 
innocent  party  to  purchase,  unconscious  of  the  latent  defect, 
and  without  any  means  of  knowing  it,  the  purchaser  has  the 
preferable  claim  in  equity  to  protection." 

30.  But  in  Jackson  v.  Dominick,*  which  was  an  action  of 
ejectment,  brought  upon  a  title  derived  from  the  mortgagor, 
subsequent  to  the  mortgage,  against  the  mortgagee,  who  had 
proceeded  upon  a  statutory  foreclosure,  under  the  power 
contained  in  the  mortgage,  and  obtained  an  absolute  title ; 
the  plaintiff  was  permitted  to  go  into  evidence  of  the  usuri- 
ous consideration  of  the  mortgage,  (although  objected  to,) 
and,  upon  his  proving  usury  to  the  satisfaction  of  the  jury, 
judgment  was  rendered  for  the  plaintiff.  The  Court  say  :  ^  — 
"  In  the  case  of  Jackson  v.  Henry  it  was  decided,  that  a  bond 
fide  purchaser,  without  notice,  under  a  sale  duly  made  pur- 

1  Jackson  v.  Bowen,  7  Cow.  13.  ■'14  John.  435. 

2  10  John.  195.  5i1j.  pp,  441    442. 
8  lb.  p.  196. 


(f/)  In  North  Carolina,  by  statute,  usury  cannot  be  set  up  against  a  bona 
fide  purchaser  of  land.     N.  C.  St.  1842,  1843,  107. 


552  THE   LAW   OF   MOETGAGES.  [CH.  XIX. 

suant  to  the  statute,  by  virtue  of  a  power  contained  in  a 
mortgage,  is  not  affected  by  usury  in  the  original,  debt.  The 
Court  there  considered  such  a  sale  as  equivalent  to  a  fore- 
closure and  sale  under  a  decree  of  a  court  of  equity,  and  that 
it  could  not  be  defeated,  to  the  prejudice  of  a  bond  fide  pur- 
chaser, on  the  ground  of  usury.  That  case  was  likened  to 
the  case  of  a  contract  originally  usurious  between  the  parties, 
and  which  has  been  subsequently  changed  by  a  new  contract 
founded  on  it,  with  a  third  person,  who  had  no  notice  of  the 
usury  ;  in  which  case,  such  new  contract  could  not  be  im- 
peached for  the  usury  which  infected  the  original  transaction ; 
and  also  to  the  case  of  an  innocent  purchaser  for  a  valuable 
consideration,  whose  title  is  valid,  notwithstanding  he  may 
have  bought  from  one  w4io  had  obtained  his  title  fraudulently. 
The  general  principle,  that  a  derivative  title  is  not  better  than 
that  from  which  it  is  derived,  is  specifically  recognized  ;  but 
the  fact,  that  Plenry  was  a  purchaser  without  notice  of  the 
usury,  was  considered  as  excepting  such  a  purchase  from  the 
operation  of  that  principle.  Much  stress,  in  that  case,  was 
justly  laid  upon  the  circumstance  of  the  mortgagor's  standing 
by,  and  permitting  the  sale  to  take  place,  and  an  innocent 
party  to  purchase.  The  purchaser  here  was  a  party  to  the 
corrupt  agreement  upon  which  the  mortgage  was  given,  and 
bought,  with  his  eyes  open,  a  disputed  title.  The  mortgage 
here  forms  a  part  of  the  defendant's  title  ;  and  he,  being  fully 
apprised  that  the  mortgage  was  void  in  law,  stands  in  no 
better  situation  than  if  no  foreclosure  had  taken  place.  He 
is  not  in  as  good  a  situation  as  a  bond  fide  assignee  of  an 
usurious  mortgage,  as  to  whom  there  is  no  question  that  the 
mortgage  would  be  void.  Whether  a  purchaser  under  a 
judgment,  recovered  upon  a  usurious  debt,  with  notice  of  the 
usury,  would  acquire  a  valid  title  or  not,  is  a  point  not  now 
presented  for  decision.  Most  probably  he  would  ;  but  there 
is  a  palpable  distinction  between  that  case  and  this.  When 
a  cause  of  action  has  once  passed  in  rem  pidicatam,  the 
defendant  and  every  otlier  person  is  forever  afterwards  pre- 


CH.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  553 

eluded  from  availing  himself  of  any  preexisting  matter, 
which  might  have  been  insisted  upon  in  bar  of  the  recovery. 
The  original  debt  ceases  to  have  a  legal  existence,  being 
merged  in  the  judgment ;  and  the  title  of  a  purchaser  under 
it  is  derived  from  the  judgment,  independent  of  the  debt. 
But  where  the  mortgage,  and  the  power  to  sell,  form  the 
foundation  of  the  purchaser's  title  ;  if  these  are  void,  so  is  the 
title  derived  under  them,  except  in  the  case  of  an  innocent 
purchaser.  The  defendant  in  this  case  is  not  a  bond  fide 
purchaser.  A  foreclosure  of  a  mortgage  under  the  statute  is 
not  founded  upon  any  judgment.  It  is  the  mere  act  of  the 
mortgagee,  who  cannot  make  that  good  and  effectual,  by  a 
sale,  which  was  unlawful  and  void  in  its  inception." 

31.  A  stranger  cannot  set  up  the  defence  of  usury.  Other- 
wise with  one  claiming  under  and  in  privity  with  the  mort- 
gagor, in  law  or  otherwise.^  (e)  Thus  a  purchaser  from  the 
mortgagor  .2 

32.  A  direct  assignee  in  trust  of  the  mortgagor  may  im- 
peach the  mortgage  for  usury ;  more  especially  where  he  has 
not  bought  subject  to  the  mortgage,  and  retained  the  amount 
of  it  in  his  hands,  under  an  express  or  implied  agreement  to 
provide  for  it.  Such  an  assignee  stands  in  the  place  of  the 
mortgagor,  with  the  same  rights  which  he  had  ;  and,  like  an 
assignee  in  bankruptcy,  or  an  executor,  or  administrator,  may 
question  the  validity  of  the  debt  outstanding  against  the 
estate.^  (/) 

1  Post  V.  Dart,  8  Pai<;e,  640.  ^  pearsall  v.  Kingsland,  3  Edw.  195. 

-  Doub  V.  Barnes,  1  Md.  Ch.  127. 


(e)  In  replevin  against  a  sherifT,  for  goods  taken  on  execution,  by  one 
claiming  under  a  prior  mortgage  from  the  judgment  debtor  ;  the  defendant 
may  set  up  as  a  defence  usury  in  such  mortgage.  Dix  i".  Van  Wyck, 
2  Hill,  522. 

(/)  In  Lloyd  i'.  Scott,  (4  Pet.  205,)  it  was  held,  that  the  grantee  of 
lands,  subject  to  an  annuity  or  rent-charge,  might  set  up  the  defence  of 
usury  in  the  deed  from  his  grantor  creating  the  rent-charge,  the  payment 
of  which  was  attempted  to  be  enforced  by  the  summary  remedy  of  distress 

VOL.  I.  47 


554  THE   LAW   OF   MORTGAGES.  [CH.  XIX. 

32  a.  A.  made  a  deed  to  B.  of  a  tract  of  land,  receiving 
from  B.  a  writing,  stipulating  that  A.  should  occupy  the 
land  for  eighteen  months,  and  at  the  end  of  that  time,  B. 
should  reconvey  to  A.  upon  receiving  the  money  advanced 
to  A.  with  usurious  interest.  B.  being  unable  to  pay,  the 
contract  was  extended.  C.  took  an  assignment  of  the  con- 
tract from  A.  in  satisfaction  of  a  judgment,  and  filed  his 
bill  alleging  usury,  and  that  the  transaction  was  a  mere 
mortgage,  and  not  a  sale.  Held,  C.  should  be  permitted  to 
redeem.' 

33.  Where  the  holder  of  a  usurious  bond  and  mortgage 
files  a  bill  of  foreclosure  against  the  mortgagor,  making  a 
subsequent  judgment  creditor  a  party,  in  order  that  his  de- 
cree may  vacate  the  judgment  lien,  in  the  hands  of  the  pur- 
chaser under  such  decree ;  the  judgment  creditor  may  rely 
upon  the  defence  of  usury  to  the  full  extent  of  his  judgment 
lien,  although  the  bill  is  taken  pro  confesso  against  the 
mortgagor.- 

34.  Where  a  bill  for  foreclosure  is  brought  against  one 
who  purchased  the  equity  of  redemption  subject  to  pay- 
ment of  the  mortgage,  he  cannot  stft  up  usury  in  the  mort- 
gage as  a  defence,  and  thus  obtain  an  interest  in  the  property, 
which  the  mortgagor  never  agreed  nor  intended  to  transfer.^ 
Nor  can  this  defence  be  set  up  by  a  subsequent  mortgagee  ; 
more  especially  by  one  who  has  foreclosed  his  mortgage  and 
himself  become  the  purchaser,  and  sold  the  estate  subject  to 
the  first  incumbrance.*  If  a  subsequent  mortgagee  can  set 
up  this  objection,  he  must  allege  it  in  his  bill.'' 

1  Skinner  r.  Miller,  5  Litt.  84.  )'.  Darf,  8  Paip;e,  640.     See  Gordon  v. 

'^  Tost  V.  Dart,  8  I'ai-e,  0.3!).  llol.art,  2  Sumn.  402. 

'^  Morris  v.  Floyd,  T)  Harh.  Su]).  130;  ■*  I!).:  Mechanics',  &c.  v.  Edwards, 
Brooks  V.  Avery,"  4  Comst.  22.'j ;  Tost     1  Barb.  271. 

s  Baldwin  t-.  Norton,  2  Conn.  161. 

under  tlie  deed.  A  mortgagee  of  real  e.state,  subject  to  the  lien  of  a  prior 
judgment,  confessed  by  the  mortgagor  upon  a  usurious  consideration,  is  not 
a  borrower  within  the  statutes  concerning  usury,  and  therefore  cannot  main- 
tain a  bill  to  set  aside  the  judgment,  without  paying  or  ofTering  to  pay  the 
sum  really  due.     llcxford  v.  Widger,  2  Comst.  131. 


CH.  XIX.]       VOID    AND    VOIDABLE    MORTGAGES. USURY.  555 

35.  Where  an  estate  in  land,  conveyed  as  security,  has 
become  absolute  in  the  grantee,  who,  at  the  request  of  the 
grantor,  conveys  it  to  a  third  person,  upon  his  paying  the 
amount  of  the  debt  secured ;  in  an  action  for  the  land  by  a 
subsequent  bond  fide  purchaser,  having  no  knowledge  of 
usury  in  any  transaction  connected  with  the  land,  against 
one  not  a  party,  nor  claiming  under  a  party  to  the  usury ;  it 
is  not  a  good  defence  that  there  was  usury  between  the 
party  requesting  the  conveyance  and  the  second  grantee.^ 

36.  In  the  case  of  Green  v.  Kemp,^  the  demandant  in  a 
real  action  counted  generally  on  his  own  seizin  and  a  dis- 
seizin by  the  tenant.  The  tenant  set  up  a  title  derived  from 
one  Woods,  who  had  mortgaged  the  premises  to  the  de- 
mandant, and  afterwards  conveyed  the  equity  of  redemption 
to  the  tenant.  The  language  of  this  conveyance  w^as  as 
follows :  said  Woods  "  demised,  released,  and  quitclaimed 
to  the  said  Kemp  all  the  right  in  equity  of  redeeming,  which 
he  had  in  the  premises."  The  deed  did  not  mention  the 
mortgage ;  nor  in  any  manner  specify  the  incumbrance 
alluded  to,  nor  state  how  the  right  of  redemption  arose. 
But  no  other  m.ortgage  than  that  to  the  demandant  was 
suggested  at  the  trial.  The  tenant  objected  to  the  title  of 
the  demandant,  upon  the  ground  that  the  mortgage  was 
made  on  a  parol,  usurious  contract.  Held,  that  evidence  of 
such  usury  was  inadmissible.  The  Court  say  :^  —  "Although 
by  the  statute  of  1783,  c.  oo,  §  1,  all  mortgages  on  usurious 
considerations  are  declared  to  be  utterly  void ;  yet  it  never 
could  have  been  intended  that  a  stranger  might  enter  on  the 
mortgagee  or  commit  a  trespass  on  the  land,  and  justify 
himself  under  the  statute,  when  all  parties  interested  in  the 
title  should  be  disposed  to  acquiesce  in  the  contract.  The 
statute  must  have  a  reasonable  construction,  and  in  conform- 
ity to  its  general  object;  which  was  to  protect  debtors  from 
the  enforcement  of  unconscionable  deman'ds.     A  mortgage 

1  Thomaston,    &c.    v.    Stimpson,    8  213  Mass.  515. 

Shepl.  195.  3  lb.  518. 


556  THE   LAW   OF   MORTGAGES.  [CH.    XIX. 

on  a  usurious  consideration  is  therefore  void  only  as  against 
the  mortgagor,  and  those  who  may  lawfully  hold  the  estate 
under  him.  On  this  construction,  if  the  tenant  had  pur- 
chased the  land,  he  might  avoid  a  previous  usurious  mort- 
gage, although  he  had  notice  of  such  mortgage  before  the 
purchase.  But  the  tenant  has  no  title  in  the  land  before 
redeeming.  He  has  purchased  only  the  right  to  redeem ; 
and  if  he  will  not  avail  himself  of  this  right,  which  is  the 
basis  of  his  title,  he  cannot  hold  the  land ;  and  having  no 
title  in  the  land,  he  cannot  be  permitted  to  avoid  the  mort- 
gage by  plea  or  proof  of  usury.  The  principle  contended 
for  by  the  tenant's  counsel  would  serve  to  encourage  fraud 
and  injustice,  rather  than  to  restrain  the  taking  of  excessive 
usury." 

36  a.  In  a  real  action,  the  tenant  alleged  that  the  demand- 
ants' title  was  by  mortgage,  and  pleaded  usury  paid  to  a 
prior  holder  of  the  mortgage  ;  averring  that  the  note  came  to 
the  demandants  discredited.  The  demandants,  in  their  repli- 
cation, denied  that  the  note  came  to  them  discredited ;  set 
forth  several  assignments ;  the  foreclosure  of  the  mortgage, 
and  a  conveyance  of  the  premises  to  themselves ;  alleged 
that  they  took  without  notice  of  usurious  transactions,  (ten- 
dering their  own  oath,)  and  that  the  usury,  if  paid  at  all,  was 
paid  to  one  B.,  a  former  holder  of  the  note  and  mortgage, 
after  he  had  assigned  the  same.  They  also  tendered  the 
oath  of  B.,  to  prove  that  the  amount  of  usury  taken  was  less 
than  that  alleged.     Held,  this  plea  was  bad.^ 

36  b.  In  such  action,  the  tenant  should  first  allege  that 
the  demandant's  title  is  by  mortgage  only,  and  then  plead 
usury  .'^ 

36  c.  In  case  of  such  an  allegation  and  plea,  the  plaintiff 
may,  1,  file  a  counter  allegation ;  2,  make  an  objection, 
which  would  be  sufficient,  if  the  action  were  upon  the  note  ; 
3,  reply  that  a  smaller  sum  only  was  taken  as  usury,  and 

1  Briggs  V.  Sholcs,  15  N.  II.  52.  2  jbid. 


CH.  XIX.]      VOID   AND    VOIDABLE   MORTGAGES.  —  USURY.  557 

offer  to  verify  by  oath  ;  4,  reply  that  the  mortgage  is  fore- 
closed.^ 

36  d.  If  the  demandant  reply  a  foreclosure,  and  fail  in  sus- 
taining his  replication,  he  admits  the  usury,  and  such  judg- 
ment will  be  rendered  for  the  tenant  as  his  plea  entitles  him 
to ;  unless  the  demandant  obtain  leave  to  reply  to  the  plea 
of  usury .^ 

37.  Where  to  a  suit  for  foreclosure  against  a  purchaser 
from  the  mortgagor,  the  defendant  sets  up  the  defence  of 
usury,  in  order  to  avail  himself  of  the  fact,  that  the  defend- 
ant purchased  subject  to  the  mortgage,  the  plaintiff  must  set 
forth  in  his  bill  the  execution  and  terms  of  the  conveyance.^ 

38.  The  law  will  always  afford  to  the  mortgagor  an  oppor- 
tunity to  avail  himself  of  the  defence  of  usury,  unless  he  is 
guilty  of  some  laches.  Thus,  an  equity  of  redemption  hav- 
ing been  sold  on  execution,  and  the  purchaser  having  become 
absolute  owner  by  the  lapse  of  a  year,  he  took  an  assign- 
ment of  the  mortgage  and  thus  acquired  the  whole  estate ; 
but  the  mortgagor  always  remained  in  possession.  In  a 
writ  of  entry  by  the  purchaser  against  the  mortgagor  ;  held, 
the  latter  might  set  up  as  a  defence  usury  in  the  mortgage 
notes  ;  this  being  the  first  opportunity  afforded  him  to  avail 
himself  of  such  defence,  and  the  right  not  having  been 
waived  or  forfeited  by  any  neglect.^ 

38  a.  So,  a  statutory  foreclosure  of  a  usurious  mortgage, 
and  a  sale  of  the  mortgaged  premises,  followed  by  a  sale 
thereof  to  a  third  person  for  a  valuable  consideration,  with- 
out notice  of  the  usury,  will  not  convey  a  valid  title  to  the 
land,  or  estop  the  mortgagor  from  alleging  usury  in  the 
mortgage.^ 

39.  But  if  judgment  has  been  recovered  upon  a  usiuious 
contract  secured  by  mortgage,  and  a  new  mortgage  given, 
the  mortgagor  cannot  resist  a  suit  on  the  latter,  upon  the 
ground  of  usury.     The  judgment  upon  the  contract  wliich 

1  Biiggs  V.  Sholes,  15  N.  H.  52.  *  Richardson  v.  Field,  G  Grecnl.  35. 

'^  Ibid.  5  Hyland  v.  Stafford,  10  Barb.  558. 

3  Hetfield  v.  Newton, 3  Sandf.  CIi.  564. 

47* 


558  THE   LAW    OF   MORTGAGES.  [CH.  XIX. 

was  affected  by  usury  having  concluded  the  debtor  from 
showing  it  in  an  action  upon  the  judgment;  he  is  equally 
concluded  in  a  suit  on  the  mortgage.^ 

40.  So,  where  a  mortgagee  sues  upon  his  mortgage,  and 
the  mortgagor  defends  upon  the  ground  of  usury,  but  fails  in 
such  defence,  and  afterwards  conveys  his  right  in  the  land ; 
the  purchaser  cannot  maintain  ejectment  against  the  mort- 
gagee upon  this  ground,  being  estopped  by  the  former 
judgment.^ 

41.  So,  w^here  mortgage  notes  are  usurious,  the  mort- 
gagor must  set  up  this  defence  to  a  bill  for  foreclosure,  or  he 
will  be  barred  by  the  decree.  But  if  the  original  contract, 
proved  by  the  notes,  was  not  usurious,  a  subsequent  payment 
of  usury  has  no  connection  with  it,  and  may  be  recovered 
back  as  money  had  and  received,  even  after  a  decree  for 
foreclosure,  without  deduction  of  such  usury.^ 

42.  So,  after  a  default  has  been  regularly  entered  in  a 
foreclosure  suit,  it  will  not  be  opened  for  the  purpose  of  en- 
abling the  defendant  to  set  up  as  a  defence,  that  the  mort- 
gage was  given  in  violation  of  the  restraining  law,  except 
upon  the  terms  of  paying  the  moneys  or  property  actually 
received  from  the  mortgagee.'^ 

43.  So,  a  judgment  creditor,  acquiring  a  lien  upon  the 
mortgagor's  whole  interest  in  premises  subject  to  a  usurious 
mortgage,  may  obtain  a  perfect  title  by  sale  and  purchase 
under  the  judgment ;  and  may  then  enjoy  the  property  as 
fully  as  the  mortgagor  would  have  done  had  he  continued 
to  be  the  owner.''  (g-) 

1  Tliatchcr  v.  (Jammon,  12  Mass.  268.        *  Bard  v.  Fort,  3  Barb.  Ch.  632. 
'-2  Adams  v.  Barnes,  17  Mass.  365.  ^  Post  v.  Dart,  8  I'aige,  640. 

8  Grow  V.  Albee,  19  Verm.  .'J40. 


i'j)  Where  a  mortgage  is  made  to  secure  a  claim  which  is  void  by  stat- 
ute, and  a  subse(|ucnt  mortgage  to  another  person  for  a  lawful  debt,  and  the 
former  claim  is  satisfied  by  a  sale  or  a  discharge  of  the  first  mortgage ;  the 
second  mortgagee  cannot  recover  the  amount  from  the  first  mortgagee. 
Ellsworth  V.  Mitchell,  31  Maine,  247. 


CH.  XIX.]      VOID    AND    VOIDABLE   MORTGAGES. USURY.  559 

44.  In  Connecticut,  in  an  action  of  ejectment,  the  defend- 
ant may  prove  usury,  in  order  to  invalidate  the  plaintiff's 
title,  founded  on  mortgage,  without  having  given  notice.^ 

45.  To  a  bill  of  foreclosure,  the  defence  of  usury  must  be 
set  up  by  way  of  plea,  and,  if  insisted  upon  in  the  answer,  it 
must  be  proved  not  by  the  answer,  but  by  evidence  aliunde.- 

46.  It  has  been  held,  that  parol  evidence  is  admissible  to 
prove  a  deed  absolute  in  form  to  be  in  reality  a  usurious 
mortgage.3 

47.  But  in  the  case  of  Flint  v.  Sheldon,^  the  demandant, 
to  prove  his  seizin,  produced  an  absolute  deed  from  the  tenant 
to  him.  The  defence  was,  that  the  deed  was  made  upon  a 
usurious  contract ;  and  the  tenant  offered  to  prove  by  parol 
evidence,  that  the  conveyance  was  not,  as  it  purported  to  be, 
an  absolute  one,  nor  the  contract  upon  which  it  was  made  a 
purchase  and  sale  of  land,  but  an  agreement  for  the  loan  and 
repayment  of  money,  the  deed  to  be  void,  or  the  premises 
reconveyed,  upon  such  repayment.  Held,  such  evidence  was 
inadmissible.  The  Court  say,^  after  remarking  that  inde- 
pendently of  the  rate  of  interest,  it  would  be  clearly  incom- 
petent to  control  an  absolute  deed  by  evidence  of  a  parol 
agreement :  — "  The  question  then  is,  whether  the  rate  of 
interest,  at  which  the  money  is  supposed  to  have  been  lent, 
makes  any  difference  in  such  a  case.  The  parol  evidence 
would  tend  to  explain  or  vary  the  import  and  effect  of  the 
deed,  as  much  if  the  loan  were  proved  to  be  at  the  rate  of 
seven  per  cent.,  as  if  it  were  at  the  rate  of  six.  The  statute 
of  usury  has  not  rescinded,  nor  in  any  manner  modified  the 
rules  of  evidence  before  mentioned.  The  intention  of  the 
legislature  was  to  render  void  every  usurious  contract ;  but 
they  have  left  it  to  be  ascertained,  as  in  other  cases,  whether 
there  is  a  contract  for  the  loan  and  repayment  of  money,  be- 
fore the  provisions  of  the  statute  can  apply."     They  further 

1  Iloltoii  V.  Cutton,  4  Conn.  436.  ^  gtapp  v.  Thelps,  7  Dana,  300  ;  Cook 

■^  Dyer   v.    Lincoln,    11    Vorm.    300;     f.  Colyer,  2  B.  IMon.  72. 
Briggs  V.  SIiolcs,  U  N.  H.  202.  *  13  Mass.  443.     See  ch.  3,  ^  14. 

6  Ibid.  447. 


560  THE   LAW   OF  MORTGAGES.  [CH.  XIX. 

remark,^  as  to  the  consequences  of  a  different  doctrine,  "  on 
proving  usury  in  any  conveyance  within  forty  years  by  the 
demandant  or  his  ancestor,  he  would  recover  the  land  against 
the  grantee,  or  any  assignee  of  his,  however  remote.  For  if 
the  statute  of  usury  applies  to  the  contract,  it  renders  it 
merely  void.  It  would  not,  therefore,  be  enough,  that  a  pur- 
chaser of  land  knew  his  own  contract  to  be  legal  and  valid ; 
he  must  be  certain  that  every  successive  sale  of  the  land  for 
forty  years  preceding  had  been  likewise  untainted  with 
usury." 

48.  "Where  one  purchased  an  equity  of  redemption,  then 
took  an  assignment  of  the  mortgage,  and  immediately  mort- 
gaged to  the  original  mortgagee ;  held,  in  a  writ  of  entry 
brought  by  the  assignee  against  the  mortgagor,  the  declar- 
ations of  the  original  mortgagee  could  not  be  given  in  evi- 
dence, to  prove  usury  in  the  first  mortgage.^ 

1  13  Mass.  450.  2  Eicliardson  v.  Field,  6  Greenl.  303. 


CH.  XX.]     VOID,   ETC.   MORTGAGES.  —  CONSIDERATION. 


561 


CHAPTER   XX. 

VOID    AND    VOIDABLE    MORTGAGES.       WANT   OR   FAILURE    OF    CON- 
SIDERATION.     ILLEGAL   CONSIDERATION. 


1.  Want  of  consideration;  as  between 
the  parties,  and  in  relation  to  creditors, 
&c. 


10.  Want  of  failure  of  consideration, 
consisting  in  a  defect  of  title. 


1.  The  question  has  arisen,  whether  a  mortgage  could  be 
avoided  for  ivant  of  consideration.  A  mortgage  of  real  estate 
is  a  sealed  instrument,  and  in  general  the  consideration  of 
such  an  instrument  is  not  open  to  dispute.  Thus  it  is  held, 
that  a  mortgagor  is  estopped  from  saying  that  no  title  was 
conveyed  to  the  mortgagee.^  The  peculiar  nature  of  a  mort- 
gage, however,  as  a  mere  incident  to  the  personal  obligation 
which  it  is  made  to  secure,  has,  in  this  as  in  other  respects, 
given  to  it  a  different  legal  effect  from  that  of  other  instru- 
ments, which  are  in  form  similar,  [a) 

'  Eailcy  v.  Lincoln  Academy,  12  Mis-  174. 


(a)  See  Pratt  v.  Law,  9  Cranch,  456.  lUcgalUy  of  consideration  undoubt- 
edly avoids  a  mortgage,  as  well  as  any  other  executory  contract ;  whether  it 
consist  in  violation  of  some  rule  of  the  common  law,  or  of  a  positive  statute. 
In  some  instances,  this  general  principle  is  enforced  by  express  statutory 
provision.  Thus,  in  Massachusetts,  all  mortgages,  in  which  the  whole  or 
any  part  of  the  consideration  shall  be  for  money  or  goods  won  by  gaming, 
or  by  betting  on  the  sides  or  hands  of  any  persons  gaming,  or  for  repaying 
money  knowingly  lent  or  advanced  for  gaming  or  betting,  or  at  the  time 
and  place  thereof  to  any  person  gaming  or  betting,  are  void  between  the 
parties,  and  as  to  all  but  ignorant,  hondfide  purchasers;  and,  when  declared 
void,  the  lands  pass  to  the  then  heirs  of  the  mortgagor.  Mass.  Rev.  Sts.  387. 
Similar  statutes  exist  in  other  States. 

A  mortgage  given  to  secure  payment  of  a  certain  sum  to  the  county,  and 
as  the  condition  of  a  pardon,  is  not  void  for  duress.     Hood  v.  "Winslow,  2 


562  THE   LAW    OF   MORTGAGES.  [CH.  XX. 

1  o.  The  plaintiff  contracted  to  sell  and  the  defendant  to 
buy,  a  tract  of  land,  the  deed  to  be  received  as  soon  as  it  could 
be  conveniently  executed,  and  a  mortgage  made  for  the  price. 
The  mortgage  was  executed  and  left  with  the  plaintiff's 
agent,  and  the  plaintiff  executed  a  deed,  and  sent  it  to  his 
agent  for  delivery.  Held,  in  a  suit  on  the  mortgage,  it  was 
not  invalid  for  want  of  consideration.' 

1  b.  Forbearing  to  collect  a  debt  for  three  months  is  suffi- 
cient consideration  for  a  mortgage  to  secure  the  debt,  if  any 
consideration  be  necessary.^ 

2.  In  the  case  of  Wease  v.  Peirce,^  it  was  held,  that  want 
of  consideration,  for  the  note  secured  by  a  mortgage,  is  a 
good  defence  to  an  action  to  foreclose  such  mortgage,  brought 
by  the  administrator  of  the  mortgagee,  even  though  the  note 
was  made  for  the  purpose  of  defrauding  creditors.  Shaw, 
C.  J.,  in  giving  the  opinion  of  the  Court,  suggested  various 
considerations  as  the  grounds  of  this  decision.  The  object 
of  such  an  action  is  chiefly  to  enforce  payment  of  the  debt, 
and  for  this  reason  the  right  of  action  is  vested  in  the  admin- 
istrator, to  whom  the  debt  itself  belongs.  So  also  the  judg- 
ment is  conditional,  and  becomes  vacated  if  the  condition  of 
payment  within  sixty  days  be  complied  with.  Of  course, 
therefore,  the  Court  are  bound  to  inquire  how  much  is  due, 
and,  when  it  appears  that  there  was  no  consideration  for  the 
note,  there  is  nothing  to  found  a  conditional  judgment  upon, 
and  the  action  cannot  be  sustained.  Although  an  intention 
to  defraud  creditors  might  not  of  itself  constitute  a  defence 
to  the  note,  if  a  consideration  were  proved ;  yet  such  inten- 
tion is  no  answer  to  the  defence  arising  from  want  of  con- 
sideration. In  such  case  the  maxim  applies,  in  pari  delicto^ 
potior  est  conditio  defendentis. 

1  Farmers',  &c.  v.  Curtis,  3  Selil.  46.  «  24  rick.  141.     Sec  cli.  G,  §  20. 

^  Bauk,  &c.  V.  Carpenter,  \Vri;^lit,  729. 


Doug.  C8.  A  mortgagor  may  redeem,  altliongli  the  mortgage  was  given  to 
seeure  notes  founded  on  a  eonsideration  wliicli  was  illegal,  or  in  violation  of 
publie  poliey.     Cowlcs  v.  llagnet,  14  Ohio,  38. 


CH.  XX.]       VOID,    ETC.    MORTGAGES.  —  CONSIDERATION.  563 

3.  In  Abbe  v.  Newton,^  a  note  and  mortgage  were  made 
for  inadequate  consideration.  Upon  a  bill  for  foreclosure 
against  a  purchaser  from  the  mortgagor,  making  the  latter  a 
party  ;  held,  the  plaintiff  should  have  a  decree  only  for  the 
value  of  the  property. 

4.  In  the  case  of  Mackey  v.  Brownfield,^  which  was  scire 
facias  upon  a  mortgage,  it  was  held,  that  the  mortgagor 
might  give  in  evidence  admissions  of  the  mortgagee,  that  the 
mortgage  was  made  for  more  money  than  the  mortgagor 
received. 

5.  The  grantee  of  land  made  a  mortgage  of  it  to  a  third 
person,  which  mortgage  was  afterwards  disputed,  on  the 
ground  of  want  of  consideration  both  as  to  the  grantee  and 
mortgagee.  The  consideration,  as  to  the  former,  was  the 
conveyance  itself,  and  as  to  the  latter,  the  payment  by  him 
of  debts  due  the  grantor,  and  of  other  sums,  at  the  request  of 
a  party  interested  in  the  land.  Held,  in  the  absence  of  fraud, 
these  considerations  were  sufficient,  and  the  mortgage  valid 
to  the  extent  of  the  actual  payments  by  the  mortgagee ;  and 
that  the  fact,  that  the  consideration  stated  in  the  mortgage 
far  exceeded  the  amount  of  such  payments,  was  only  pre- 
sumptive evidence  of  fraud,  which  might  be  rebutted.^ 

5  a.  Where  land  is  defectively  conveyed  in  satisfaction  of 
a  mortgage,  and  no  title  passes ;  a  new  mortgage  may  be 
made  for  this  consideration,  but  the  old  mortgage  cannot  be 
revived  without  the  mortgagor's  consent  and  that  of  subse- 
quent mortgagees.* 

5  b.  A.  gave  his  notes  to  three  persons,  for  B.'s  benefit,  one 
for  $1,500,  and  another  for  $3,500,  and  took  from  B.  his  note 
for  $5,000,  secured  by  mortgage.  Held,  the  transaction  was 
a  valid  one.'^ 

5  c.  In  New  York,  the  Revised  Statutes  allow  want  of 
consideration  to  be  set  up  as  a  defence  against  a  sealed  in- 
strument.     But  where  an  executor  brought  an  action  for 

1  19  Conn.  20.  *  Lasselle  v.  Barnett,  1  Blackf.  1.50. 

2  1.3  S.  &  K.  239.  5  Bishop  v.  Warucr,  19  Coim.  460. 

3  Parker  v.  Barker,  2  ISIct.  423. 


564  THE   LAW   OF   MORTGAGES.  [CH.  XX. 

monev  had  and  received,  and  the  defendant  claimed  to  have 
received  the  money  under  a  mortgage  from  the  testator ; 
held,  the  above  provision  did  not  apply  to  cases  where  the 
consideration  comes  in  question  collaterally ;  and  that  want 
of  consideration  for  such  mortgage  could  not  be  set  up  in 
defence  to  the  action.^ 

6.  A  conditional  pardon,  having  required  the  criminal  to 
secure  $1,000  to  the  county,  the  county  commissioners  ob- 
tained a  mortgage  for  $1,150.  Held  good  for  $1,000,  but 
void  for  the  rest.^ 

7.  Want  of  consideration  may  of  course  be  set  up  in  case 
of  a  mortgage,  as  of  other  deeds,  to  show  fraud  against 
creditors.  Thus,  a  mortgagee,  claiming  against  a  purchaser 
under  a  judgment  creditor  of  the  mortgagor,  must  prove  the 
consideration  of  his  mortgage.^ 

8.  On  the  other  hand,  where  the  plaintiff  avers  that  he  is 
a  creditor  of  one  of  the  defendants,  and  that  the  latter  had 
executed  a  mortgage  in  favor  of  the  other  defendant,  with- 
out consideration,  and  for  the  fraudulent  purpose  of  defeating 
the  plaintiff's  recourse  upon  the  property,  and  prays  that  the 
mortgage  may  be  cancelled,  and  the  property  subjected  to 
his  claims ;  the  plaintiff  must  prove  himself  a  creditor,  even 
though  judgment  was  rendered  by  default.* 

9.  A  person  in  failing  circumstances,  and  about  to  mort- 
gage his  real  estate  and  assign  his  personal  property  for  the 
security  of  certain  creditors,  gave  his  own  note  for  $800,  and 
included  it  in  the  first  mortgage  and  the  assignment,  on  the 
sole  consideration  that  the  promisee  should  give  his  note  for 
the  same  amount  to  the  mortgagor,  in  order  to  furnish  him 
with  the  means  of  support  for  himself  and  his  family,  until 
he  could  resume  business,  and  to  enable  him  to  make  some 
provision  for  unsecured  claims.  The  promisee  accordingly 
gave  his  note,  and  paid  thereupon  $200,  which  the  promisor 
applied  exclusively  to  his  own  support.     Held,  the  debt  thus 

1  (Jilluhui.l  V.  Failing,',  5  Denio,  308.  "  McGintry  v.  Reeves,  10  Ala.  137. 

'■^  Uuod  i-.\Viiislo\v,2  Doug.  (Mich.)  G8.  *  Fink  v.  Martin,  1  La.  Ann.  R.  117. 


CH    XX.]      VOID,   ETC.    MORTGAGES. CONSIDERATION.  565 

created  was  invalid  against  other  creditors,  and  no  part  of 
it  could  be  protected  by  the  securities  held  by  the  promisee.^ 

9  fl.  A  mortgage  from  son  to  father,  mortgaged  to  secure 
payment  of  a  certain  sum  advanced  in  lands,  since  mortgag-ed, 
imports  that  the  lands  were  given  as  an  advancement,  and  is 
invalid  as  against  creditors  of  the  mortgagor.^ 

10.  In  cases  of  a  conveyance  of  land,  and  a  mortgage  back 
for  the  price,  the  question  has  often  been  raised,  whether 
want  OT  failure  of  consideration,  consisting  in  a  defect  of  title 
on  the  part  of  the  mortgagee  or  grantor,  can  be  set  up  as  a 
defence  to  a  suit  upon  the  mortgage.^ 

10  a.  A  vendee  may  deduct,  from  the  amount  of  his  pur- 
chase-money, the  value  of  an  easement  in  favor  of  another 
estate,  to  which  the  land  sold  is  servient,  existing  at  the  time 
of  his  conveyance,  and  of  which  the  vendee  at  that  time  had 
no  notice.* 

11.  Conveyance  with  warranty,  and  a  bond  and  mortgage 
back  to  secure  part  of  the  price.  The  mortgagor  brings  a 
bill  in  equity  for  an  injunction  of  a  suit  at  law,  upon  the 
ground  of  a  failure  of  consideration  of  the  bond  and  mort- 
gage, consisting  in  a  want  of  title  in  the  mortgagee.  It 
appeared,  that  the  plaintiff  had  taken  possession  and  never 
been  evicted  ;  that  the  securities  had  been  assigned,  for  value  ; 
and  that  the  plaintiff,  in  consideration  of  forbearance,  gave 
the  assignee  a  new  bond  and  mortgage,  the  latter  having  no 
notice  of  any  fraud  or  failure  of  consideration  in  the  original 
transaction.      Held,  the  bill  could  not  be  maintained.'^ 

12.  In  Van  Waggoner  v.  M'Ewen,^  a  defence  to  a  bill  for 
foreclosure  was  denied,  because  the  party  merely  alleged  an 
outstanding  title. 

13.  Conveyance  to  the  president  of  an  incorporated  com- 
pany and  his  successors  in  trust  for  the  stockholders.     The 


1  Pettibone  r.  Stevens,  15  Conn.  19.  ^  Rumpus  v.  Platner,  1  Johns.  Ch. 

2  Waller  v.  Todd,  3  Dana,  50.3.  213  ;  Davison  v.  Dc  Freest,  3  Sandf. 

3  See  Naf)icr  v.  Elam,  0  Yerg.  108;  Ch.  456. 

Forster  v.  Gillam,  1  Ilarr.  .340.  ^  1    Green,  Ch.  412.     See  Jaques  v. 

*  Stehlcy  v.  Irvin,  8  Barr,  500.  Esler,  3  Ibid.  462. 

VOL.  I.  48 


566  THE   LAW   OF   MORTGAGES.  [cH.  XX. 

president,  under  a  power  from  the  stockholders,  conveyed 
and  delivered  possession  to  the  defendant,  having  notice  of 
his  title,  and  took  notes  for  the  price,  secured  by  mortgage  of 
the  property.  In  a  bill  to  foreclose,  brought  by  an  assignee 
of  one  of  the  notes,  the  mortgagor  sought  to  defend  upon  the 
ground  that  the  deed  to  the  president  was  void,  but  did  not 
allege  any  fraud  or  mistake.  There  had  been  no  eviction 
from  the  premises.     Held,  no  defence  to  the  suit.^ 

14.  Defence  to  a  suit  for  foreclosure,  that  the  mortgage 
was  given  to  secure  the  price  of  the  land,  which  was  con- 
veyed to  the  defendant  without  covenants,  and  that  an 
adverse  claimant  had  brought  a  suit  for  the  land,  which  was 
vigorously  prosecuted,  and,  if  successful,  would  deprive  him 
of  all  title  except  a  right  to  dower ;  the  defendant  having 
been  in  possession  since  the  purchase,  and  never  evicted. 
Held,  the  plaintiff  should  have  a  decree  for  a  sale,  and  for 
payment  of  any  deficiency  against  the  mortgagor.^ 

15.  In  a  bill  to  foreclose  a  mortgage,  no  question  was  made 
by  the  defendant,  as  to  the  complainant's  right  to  a  decree 
for  a  sale  of  the  mortgaged  premises,  and  payment  of  the 
debt  and  costs  out  of  the  proceeds,  as  far  as  the  same  would 
go.  But  the  answer  showed,  that  the  defendant  gave  the 
bond  and  mortgage  in  part  payment  of  the  purchase-money 
for  a  number  of  lots,  including  those  mortgaged ;  that  the 
grantor  had  no  title,  and  under  the  deed  to  him  he  had  none 
to  four  of  the  lots  embraced  in  the  deed  and  mortgage.  But 
the  answer  was  sUent  about  the  possession  of  the  four  lots ; 
and  whether  it  was  or  ever  had  been  in  the  defendant ;  or 
whether  the  possession  was  held  adversely  under  title  para- 
mount, or  what  that  title  was ;  resting  on  the  broad  assertion 
that  "  the  deed,  &c.  had  conveyed  no  right,  title,  or  estate, 
or  interest  whatsoever,  in  or  to  the  said  four  lots,"  and  claim- 
ing, upon  this  ground,  that  the  mortgagee  should  not  have  a 
decree  over  against  the  mortgagor  for  any  deficiency,  (accord- 
ing to  the  statutory  provision  in  New  York.)     Held,  upon 

1  Natchez  V.  Minor,  9  Sin.  &  M.  (Miss.)  .544.     -  Banks  v.  Walker,  2  Sandf.  CIi.  344. 


en.  x:;:.]      void,  etc.  mortgages.  —  consideration.  567 

• 

this  answer,  the  Court  was  not  bound  to  decree  the  defend- 
ant exonerated  even  pro  tanto  from  the  mortgage  debt,  but, 
in  order  to  obtain  such  decree,  the  defendant  should  file  a 
bill ;  but  further,  that  there  was  enough  disclosed  in  the 
answer  to  warrant  the  Court  in  withholding  the  personal 
decree,  and  leaving  the  plaintiff  to  sue  at  law  upon  the  bond, 
and  also  to  file  a  bill  for  relief.  Decree  for  foreclosure  and 
sale,  but  with  liberty  to  sue  at  law  for  any  balance.^ 

16.  Mortgage,  in  consideration  of  land  purchased  by  the 
mortgagor,  the  title  to  a  part  of  which  fails,  but  without 
fraud  on  the  part  of  the  grantor.  The  mortgagor  having 
entered,  and  the  conveyance  containing  covenants  of  war- 
ranty ;  held,  the  facts  furnished  no  defence  to  a  bUl  for  fore- 
closure, and  that  there  should  be  a  decree  for  a  sale  of  the 
mortgaged  premises,  and  an  execution  against  the  defendants 
for  any  deficit  there  might  be  after  the  sale.  Bronson,  J., 
says  :  —  "  No  one  has  brought  any  suit  to  question  Varick's 
title,  and,  as  far  as  we  can  know  now,  none  will  ever  be 
brought.  But  should  he  ever  be  disturbed,  he  has  an  ample 
remedy  on  the  covenants  in  the  deed.  More  than  that,  he 
might  have  sued  before  this  time,  and  may  still  sue  when  he 
pleases,  on  the  covenant  of  seizin.  If  there  was  a  serious 
question  about  the  title,  and  a  suit  had  actually  been  com- 
menced to  recover  a  -  portion  of  the  land,  Chancery  might 
enjoin  the  respondents  from  proceeding  at  law  to  collect  the 
whole  amount  of  the  mortgage  debt,  until  the  title  had  been 
tried  ;  ^  and  in  such  a  case,  where  the  proceedings  to  collect 
the  mortgage  debt  are  commenced  in  Chancery,  that  Court 
might  perhaps  stay  the  foreclosure  suit,  until  there  had  been 
a  trial  at  law.  But  it  is  no  answer  to  say,  peradventure  the 
title  may  fail,  and  thus  call  on  a  court  of  equity  to  try  in  this 
collateral  manner,  and  without  the  proper  parties,  a  question 
which  properly  belongs  to  a  court  of  law.  If  the  purchaser 
has  not  been  ousted,  he  must  pay  the  mortgage  debt,  and 
take  his  remedy  on  the  covenants.     The  fact  that  there  may 

1  Withers  v.  Mon-ell,  3  Edw.  5G0.  ^  Johnson  v.  Gere,  2  John.  Ch.  546. 


568  THE   LAW    OP   MORTGAGES.  [CH. '  XX. 

now  be  a  decree  in  personam,  as  to  any  balance  which  may 
remain  after  a  sale  under  the  mortgage,  does  not  alter  the 
principle."  ^ 

16  a.  A.,  being  assignee  of  a  mortgage  for  the  purchase- 
money  of  a  large  tract  of  land,  took  a  mortgage  from  B.,  the 
holder  of  a  portion  of  the  land,  for  his  ratable  proportion  of 
the  original  mortgage  debt,  all  the  parties  having  notice  of  a 
claim  of  a  paramount  title  by  the  State.  The  several  holders 
of  the  land,  covered  by  the  original  mortgage,  subsequently 
petitioned  to  the  State  for  relief  against  the  State  claim, 
stating  that  they  had  satisfied  the  original  mortgage,  and 
obtained  a  release  from  the  State,  at  a  price  reduced  on  account 
of  the  alleged  satisfaction  of  the  mortgage.  Held,  B.  could  not 
afterwards  resist  the  demand  of  payment  of  the  substituted 
mortgage,  especially  as  against  a  bond  fide  assignee  of  such 
mortgage.^ 

17.  In  Piatt  V.  Gilchrist,'^  a  mortgage  was  given  for  the 
purchase-money  of  land  conveyed  with  warranty.  The 
answer  to  a  bill  for  foreclosure  alleged,  that  a  suit  had  been 
brought  by  parties  claiming  the  land  under  a  paramount  title, 
and  prayed  that  the  foreclosure  and  sale  might  be  deferred 
till  this  suit  should  have  been  determined.  Held,  although 
after  eviction  relief  would  be  granted,  to  prevent  circuity  of 
action,  until  such  eviction  the  Court  could  not  interfere. 
Mason,  J.,  says :  —  "  The  purchaser  in  this  case  promised  to 
pay  the  purchase-money  at  stipulated  periods,  and  the  seller 
covenanted,  that  if  at  any  time  the  title  should  fail,  and  the 
purchaser  be  evicted  by  a  paramount  title,  he  would  refund 
the  purchase-money  with  interest.  The  possibility  that  the 
title  might  fail,  and  the  purchaser  be  evicted,  was  in  the 
minds  of  the  parties.  They  might  also  have  provided,  that 
in  case  of  a  claim  being  made  by  title  paramount  before 
actual  payment  of  the  consideration-money,  the  right  of  the 
vendor  to  call  for  its  payment  should  be  suspended.  But  this 

1  Edwards  v.  Bodinc,  2G  Wend.  109,  ^  8  N.  Y.  Lej;.  Ohscrv.  7  ;  ace.  MeLe- 
11.3,  114.  more  v.  Mabsoii,  20  Ala.  137. 

^  Lee  V.  Torter,  5  John.  Cli.  2G8. 


CH.   XX.]         VOID,   ETC.   MORTGAGES.  —  CONSIDERATION.  569 

they  have  not  thought  proper  to  do,  and  this  Court  can  with 
no  more  propriety  add  such  a  clause  to  the  contract,  and 
suspend  the  collection  of  the  purchase-money,  than  it  can 
suspend  the  collection  of  rent  expressly  covenanted  to  be  paid, 
upon  the  destruction  of  the  buildings,  where  the  parties  have 
not  themselves  provided  against  it." 

18.  So,  it  has  been  held,  that  where  land  is  sold  at  auc- 
tion, and  conveyed  without  warranty,  and  at  the  risk  of  the 
purchaser,  and  a  bond  and  mortgage  given  for  the  price,  part 
failure  of  title  is  no  defence  to  a  suit  for  foreclosure,  if  there 
was  no  fraud  or  misrepresentation  on  the  part  of  the  mort- 
gagee.i 

18  a.  Where  a  purchaser  has  notice  of  an  outstanding 
claim  of  title,  and  takes  a  deed  with  general  warranty,  he 
cannot  set  up  that  title  as  a  defence  to  an  action  on  a  mort- 
gage for  the  purchase-money,  when  his  possession  has  not 
been  disturbed  ;  though  he  was  misled  as  to  the  nature  of 
the  adverse  title  by  a  statement  of  the  vendor's  agent.^ 

19.  So,  in  a  suit  for  foreclosure,  a  defence  of  undue  influ- 
ence and  misapprehension  of  title  was  held  insufRcient.^ 

20.  But  actual  eviction  has  been  held  a  good  defence  to  a 
mortgage.  In  1814,  the  plaintiff  conveyed  to  the  defendant, 
taking  back  a  mortgage  to  secure  the  purchase-money.  In 
1824,  a  third  person  brought  a  suit  for  the  land,  of  which  the 
plaintiff  had  notice,  and  promised  to  defend,  but  judgment 
was  rendered  by  default.  In  1826,  a  wnrit  of  possession 
issued,  of  which  the  agent  of  the  plaintiff  had  notice.  In 
1830,  the  defendant  took  a  lease  of  the  land  from  the  plaintiff 
in  the  former  suit,  and  continued  to  hold  under  him  till  1845. 
In  an  action  on  the  mortgage,  held,  the  plaintiff  must  show 
title  in  himself,  and  that  the  defendant  might  set  up  a  failure 
of  consideration  of  the  mortgage,  notwithstanding  his  con- 
tinuing in  possession.* 

21.  In  Van  Riper  v.  Williams,^  to  a  bill  for  foreclosure,  the 

1  Banks  r.  Waller,  3  Barb.  Ch.  438.  *  Povntnell  v.  Spencer,  6  Barr,  254. 

2  Bradford  v.  Potts,  9  Barr,  37.  ^  1  Green,  Ch.  407. 

3  Wooden  v.  Ilaviland,  18  Conn.  101. 

48* 


570  THE   LAW   OF  MORTGAGES.  [CH.  XX. 

defendant  answered,  that  it  was  given  for  the  price  of  land 
conveyed  with  covenant  of  seizin  and  against  incumbrances, 
except  a  specified  mortgage,  but  that  the  premises  were  sub- 
ject to  another  mortgage  "  still  outstanding,  unsatisfied,  and 
uncancelled."  The  case  being  submitted  on  the  pleadings 
and  proofs ;  held,  the  mortgage  must  be  removed,  before  a 
decree  for  foreclosure  and  sale  could  be  made,  or  a  sufficient 
portion  of  the  proceeds  of  sale  ordered  to  be  applied  to  the 
mortgage,  and  deducted  from  the  debt. 


en.  XXI.]      VOID    AND    VOIDABLE   MORTGAGES. —  FRAUD.  571 


CHAPTER    XXI. 

VOID  AND  VOIDABLE  MORTGAGES.  FRAUD  BETWEEN  THE  PAR- 
TIES AND  IN  RELATION  TO  CREDITORS.  FRAUD  ON  THE  PART 
OF  A  MORTGAGEE;  EFFECT  UPON  SUBSEQUENT  INCUMBRAN- 
CERS. 


I.  Fraud  between  the  parties. 
5.  Fraud  as  to  creditors,  &c. 

II.  Fraudulent  concealment  or  mis- 
representation of  title  by  a  mortgagee  ; 
eft'ect  upon  subsequent  incumbrances  ; 
attestation  by  him  of  a  subsequent  deed  ; 


delivery  of  title  deeds  to  the  mortgagor. 
&c. 

34.  Limitations  and  restrictions  of  the 
rule  above  stated. 

44.  Mortgage  from  client  to  attorney. 


1.  Fraud  avoids  mortgages,  as  well  as  other  securities  and 
transfers ;  and,  as  in  other  cases,  may  exist  between  the  par- 
ties,  or  only  in  reference  to  creditors.^ 

2.  A  bill  in  equity  lies  to  set  aside  a  fraudulent  mortgage, 
though  the  plaintiff  is  in  possession,  and  might  maintain  it, 
against  the  mortgagee,  at  law.^  Upon  this  subject.  Judge 
Story  says :  ^  —  "  It  is  objected,  that  the  bill  asserts,  that  the 
title  of  the  defendant  being  fraudulent  is  ipso  facto  void  ;  and 
therefore  his  remedy  is  at  law ;  and  he  has  no  standing  in  a 
court  of  equity.  But  a  court  of  equity  has  a  clear  concurrent 
jurisdiction  with  courts  of  law  in  cases  of  fraud.  Besides  > 
here  the  bill  goes  for  a  discovery,  and  other  equitable  relief, 
which  cannot  be  obtained  by  a  suit  at  law.  The  plaintiff  is 
in  possession,  and  cannot  sue  at  law.  His  only  remedy  is  in 
equity.  He  seeks  to  remove  out  of  his  way  a  title,  fraudulent 
in  its  nature,  which  obstructs  his  own  title ;  and  he  seeks  a 
declaration  from  the  Court,  that  it  is  fraudulent,  and  that  the 
fraudulent  party  shall  execute  a  release." 

1  In  New  Jersey,  a  mortgage  made  B.  Monr.  72;  Wooden  v.  Haviland,  18 
after  arrest  of  the  mortgagor  is  void.     Conn.  101. 

Rev.  Stat.  324.     See  Cook  i-.  Colyer,  2        ^  Marston  v.  Brackett.  9  N.  H.  337. 

3  Briggs  V.  French,  1  Sumn.  505,  506. 


572  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

3.  In  a  bill  for  discovery,  and  to  set  aside  a  mortgage, 
which  the  plaintiff  alleges  was  taken  by  the  defendant  with 
intent  to  defraud  the  plaintiff,  the  defendant  cannot,  by 
demurring,  avoid  answering,  and  disclosing  when  the  mort- 
gage was  made,  or  whether  he  claims  to  hold  under  it ;  or 
disclosing,  and  if  in  his  power  producing,  the  mortgage  note  ; 
or  stating  when,  where,  in  whose  presence,  and  for  what  it 
was  given,  or  from  whom  the  consideration  was  received, 
and  to  whom  paid.' 

4.  Fraud  in  procuring  a  mortgage  is  no  defence  to  a  bill 
for  foreclosure,  unless  committed  by  the  mortgagee  or  his 
agents,  or  with  his  knowledge  at  the  time  of  taking  the 
mortgage.  The  answer  must  distinctly  state  the  facts  which 
constitute  the  fraud,  and  charge  the  mortgagee  with  notice 
of  it.2 

4  a.  It  has  already  been  somewhat  considered,  how  far  a 
mortgage  may  be  impeached  by  creditors  of  the  mortgagor 
for  ivant  of  consideration ;  (ch.  20).  The  following  addi- 
tional principles  and  cases  illustrate  the  same  point. 

4  b.  Possession  after  the  law-day  raises  no  presumption  of 
fraud.3 

4  c.  Where  one  conveys  absolutely,  to  protect  the  prop- 
erty from  his  creditors,  with  a  private  agreement,  reserving 
a  title  to  himself;  neither  he  nor  his  administrator  can  claim 
relief  in  equity.^ 

5.  Mortgage,  to  secure  a  note  made  without  consideration, 
for  the  purpose  of  defrauding  creditors,  the  mortgage  being 
duly  recorded.  The  mortgagee  afterwards  delivered  up  the 
note  to  be  cancelled,  and  the  mortgagor  then  conveyed  to  a 
bond  fide  purchaser.  Subsequently,  the  mortgagee  procured 
a  new  note,  like  the  former  one,  and  attempted  to  claim 
under  the  mortgage.  Upon  a  bill  in  equity  filed  by  the  pur- 
chaser, held,  he  was  entitled  to  a  release  of  the  mortgagee's 
pretended  title ;  that  the  case  did  not  fall  within  the  princi- 


1  Burns  v.  ITobbs,  29  Maine,  273.  ^  Steele  t'.  Adams,  21  Ala.  534. 

^  Aikin  v.  Morris,  2  Barb.'  Cli.  140.  *  Arnold  v.  Mattison,  3  Rich.  Eq.  153. 


CH.  XXI.]      VOID   AND    VOIDABLE   MORTGAGES.  —  FRAUD.  573 

pie,  that  a  bond  fide  purchaser  without  notice  cannot  main- 
tain a  bill  for  relief,  although  he  have  a  good  equitable 
defence,  the  parties  in  this  case  not  having  equal  equities ; 
nor  within  the  principle,  that  a  subsequent  purchaser  with 
notice  is  not  entitled  to  dispute  a  prior  conveyance.^ 

6.  An  oral  promise  by  a  mortgagee  to  creditors  of  the 
mortgagor,  to  relinquish  his  claim  to  the  land,  if  they  wiU 
take  from  the  mortgagor  another  mortgage,  and  extend  the 
time  of  payment ;  is  presumptive  evidence  of  fraud  in  the 
existing  mortgage.^ 

7.  Upon  a  bill  to  redeem  brought  by  a  subsequent  against 
a  prior  mortgagee,  the  latter-  cannot  defend,  upon  the  ground 
that  the  second  mortgage  is  fraudulent  as  against  creditors, 
being  neither  a  creditor  himself,  nor  standing  in  such  a  rela- 
tion as  to  defend  in  behalf  of  any  creditor ;  but,  as  showing 
the  intention  of  certain  acts,  and  in  connection  with  an 
alleged  want  of  delivery  of  the  deed,  the  evidence  is  admis- 
sible.3  But  a  first  mortgagee  may  take  advantage  of  a  fraud 
against  creditors  in  a  subsequent  mortgage.*  So,  a  pur- 
chaser under  a  decree  of  sale,  in  a  proceeding  to  foreclose 
the  first  mortgage,  may  impeach  a  subsequent  mortgage,  as 
fraudulent  against  creditors.^ 

7  a.  It  is  not  a  badge  of  fraud  in  a  mortgage,  that  it  was 
taken,  after  the  creditor  knew  of  the  intention  of  the  debtor 
to  mortgage  the  same  land  to  another  creditor,  to  secure  a 
preexisting  debt.^ 

8.  Conveyance  of  land,  fraudiilent  as  to  creditors.  The 
grantee  mortgaged  back  to  secure  the  notes  given  for  the 
price ;  the  mortgagee  assigned  the  notes  and  mortgage,  and 
the  mortgagor  also  transferred  his  right  in  the  land.  Held, 
the  assignees  of  both  parties  succeeded  to  the  rights  of  their 
assignors  ;  that  the  purchaser  of  the  equity  of  redemption 


1  Marston  v.  Brackett,  9  N.  H.  337.  *  Shiveley  v.  Jones,  6  B.  IVIon.  274. 

2  Parker  v.  Barker,  2  Met.  423.  ^  jhid. 

3  Powers  V.  Russell,  13  Pick.  69.  ^  Craig  v.  Tappin,  2  Sandf.  Ch.  78. 


574  THE   LAW   OF  MORTGAGES.  [CH.  XXI. 

had  a  right  to  redeem,  but  could  not  as  a  creditor  object  to 
the  title  of  the  assignee  of  the  mortgage.^ 

8  a.  Whether  the  consideration  of  a  mortgage  is  bond  fide ^ 
or  merely  colorable  to  defraud  creditors,  or  so  inadequate  as 
to  constitute  a  badge  of  fraud,  is  a  question  of  faft  which 
should  be  left  to  the  jury,  upon  the  whole  evidence,  without 
any  restriction  on  the  part  of  the  Court,  as  to  the  necessity 
of  proving  all  the  items  of  indebtedness  alleged,^ 

8  b.  In  Massachusetts,  (Stat.  1852,  chap.  312,  sec.  52,)  one 
claiming  a  title  to  real  property,  and  in  possession  thereof, 
may  file  a  bill  in  equity,  for  the  purpose  of  compelling  an 
adverse  claimant  to  bring  an  action  and  try  his  right.  In  a 
recent  case  it  was  held,  that  the  holder  of  a  mortgage,  duly 
recorded,  will  not  be  ordered  by  the  Court  to  bring  an  action 
for  the  purpose  of  trying  his  title,  upon  the  petition  of  the 
assignee  in  insolvency  of  the  mortgagor  under  the  above  stat- 
ute. The  Court  say  :  —  "The  petitioners,  if  they  deny  the 
validity  of  the  mortgage  altogether,  as  one  fraudulent  against 
creditors,  can  bring  a  writ  of  entry  themselves  to  try  the  title  ; 
and  the  defendants  in  their  plea  would  be  obliged  to  admit 
or  deny  the  petitioners'  title."  ^ 

8  c.  A  mortgage  given  by  a  fraudulent  grantor  to  a  cred- 
itor, to  secure  the  payment  of  a  judgment,  is  good  against 
him,  and  all  claiming  under  him.*  Also  against  a  creditor 
of  the  fraudulent  grantor,  who  has  had  the  assignment  set 
aside,*  but  who  acquired  no  lien  on  the  property  prior  to  the 
mortgage.'' 

8  d.  The  declarations  of  a  mortgagor,  as  to  his  intention 
in  executing  the  mortgage,  are  not  admissible  to  impeach 
the  title  of  the  mortgagee,  by  showing  fraud,  unless  they 
were  brought  to  his  knowledge  prior  to  the  execution  of  the 
mortgage.*^ 

8  e.  Where  a  mortgage  was  made  by  a  debtor  to  two  of 

1  Sprague  r.  Graham,  29  Maine,  IGO.  *  Tox  v.  Clark,  Walk.  Ch.  535. 

2  Williams  v.  Kolscy,  G  Geo.  305.  ^  Ibid. 

8  Dcwcy  V.  Bulklcy,  Gray,  41G,  417.  ^  y^^^^^.  j,_  White,  12  111.  2G1. 


CH.  XXI.]       VOID    AND    VOIDABLE    MORTGAGES. FRAUD.  575 

his  creditors,  of  property  against  which  he  knew  an  attach- 
ment was  issued,  but  before  it  had  been  levied,  and  there 
were  no  other  circumstances  indicating  fraud,  the  mortgage 
was  held  to  be  valid.' 

8/.  A  debtor  may  give  preference  in  a  mortgage  to  one 
creditor  over  another,  or  designate  the  order  in  which  the 
debts  provided  for  shall  be  paid  out  of  the  mortgaged  prop-. 
erty.2 

8  g.  Where  a  creditor  took  a  mortgage,  covering  property 
beyond  what  was  necessary  to  satisfy  the  sum  due,  leaving 
out  nothing  to  satisfy  a  decree  which  was  shortly  expected 
to  be  rendered  against  the  mortgagor ;  held,  fraudulent  and 
void.^ 

8  li.  A  son,  being  indebted  to  his  mother,  executed  to  her 
a  mortgage  of  all  his  property,  which  was  no  more  than  ade- 
quate security,  at  her  solicitation.  Held,  the  understanding 
of  the  parties,  that  the  mortgage  would  not  be  enforced,  did 
not  avoid  it  as  to  creditors.* 

8  i.  Where  a  surety  takes  from  his  principal  a  mortgage 
to  indemnify  him,  and  joins  with  the  principal  in  a  bond  for 
the  prosecution  of  a  writ  of  error,  on  a  several  judgment 
against  the  mortgagor  on  the  debt,  for  which  the  mortgagee 
is  surety,  the  validity  of  the  mortgage  will  not  thereby  be 
affected.^ 

9.  A  mortgage  to  secure  the  debt  of  another  is  not  jjer  se 
fraudulent  against  creditors.  Such  mortgage  is  distinguish- 
able from  a  voluntary  conveyance  or  deed  of  gift,  without 
consideration.  In  this  case,  the  grantor  finally  parts  with 
his  property,  and  it  is  alienated  as  well  from  his  creditors 
as  himself.  In  the  other  it  is  a  pledge  only,  perhaps  for  a 
small  amount,  and  the  grantor's  estate  is  not  devested. 
Moreover,  a  conveyance  is  not  in  law  fraudulent,  without  a 
fraudulent  intent  in  both  parties.  In  a  voluntary,  absolute 
deed,  both  of  course  know  the  want  of  consideration ;  and 

1  Kennaird  v.  Adams,  11  B.Mon.  102.         ^  Thompson  v.  Drake,  3  B.  Mon.  565. 

2  Robinson  v.    Collier,  11    B.    Mon.         *  Maples  t;.  Maples,  Rice,  Ch.  300. 
332.  5  Stover  v.  Heirington,  7  Ala.  142. 


576  THE    LAW    OF    MORTGAGES.  [CH.  XXI. 

from  this  a  fraudulent  intent  must  necessarily  be  inferred,  if 
the  grantor  is  at  the  time  indebted.  But  a  mortgage  to  se- 
cure the  debt  of  another  is  not  voluntary} 

10.  In  Connecticut,  in  the  case  of  Palmer  v.  Mead,^  con- 
trary to  the  general  doctrine  above  stated,  it  was  held,  that, 
upon  a  bill  for  foreclosure,  the  title  of  the  mortgagee  cannot 
be  inquired  into.  Hence,  where  attaching  creditors  of  the 
mortgagor,  after  production  of  the  note  and  mortgage,  set 
up  as  a  defence  to  such  bill  that  the  mortgage  was  fraudu- 
lent and  void  against  creditors ;  it  was  held  that  such  evi- 
dence was  incompetent.  The  Court  remarked,  that  if  the 
title  to  land  might  be  brought  in  question,  the  process  was 
local ;  whereas,  by  the  established  law,  a  bill  for  foreclosure 
need  not  be  brought  in  the  county  where  the  land  lies.  In 
such  bill  it  is  sufficient  to  aver,  that  the  defendant  executed 
a  deed  on  condition  ;  and  of  course  any  circumstances  show- 
ing the  instrument  to  be  no  deed,  such  as  forgery,  want  of 
witnesses,  duress,  fraud,  coverture,  &c.  may  be  shown  in 
defence ;  but  not  circumstances  merely  impairing  its  effect. 
(Two  Justices  dissented.)  [a) 

11.  A  mortgage  will  be  avoided,  as  to  third  persons,  by 
any  misrepresentation  or  concealment,  on  the  part  of  the 
mortgagee,  with  respect  to  his  incumbrance,  which  induces 
them  to  purchase  or  make  advances  upon  the  land.  This 
kind  of  fraud  is  chiefly  cognizable  in  equity,  though  even 
courts  of  law  will  often  take  notice  of  it.     In  many  cases, 

1  Manlcn  v.  Babcock,  2  Met.  99,  104,  27  Conn.  149. 

105;  liearn,  1  Buck's  liankr.  C.  1G5.  ' 


(a)  Where  a  mortgage  is  made  to  the  mortgagee  as  trustee,  who  brings  a 
bill  for  foreclosure ;  the  mortgagor  cannot  set  up  as  a  defence  the  legal 
invalidity  of  the  trust.  The  Court  say:  — "  He  (the  defendant)  and  those 
clainiing  under  him  can  be  in  no  danger  of  being  made  liable  to  pay  the 
bond  and  mortgage  or  the  purchase-money  a  second  time,  if  they  fshould 
now  pay  or  suffer  the  property  to  be  sold  in  payment  and  satisfaction  of  the 
lien  upon  it."     Schenck  v.  EUingwood,  3  Edw.  175,  177. 


en.  xxr.]     VOID  and  voidable  mortgages. — eraud.  577 

equity  and  law  have  concurrent  jurisdiction.  The  principle 
of  equity  is,  that  where  one  seeks,  by  misrepresentation  or 
even  improper  concealment  of  facts,  in  the  course  of  a  trans- 
action, to  mislead  the  judgment  of  another  to  his  prejudice, 
the  Court  will  generally  interfere.  Mere  concealment  or 
looking  on  has  the  same  effect,  as  using  express  words  of 
inducement.  "  Qui  facet,  consentire  vicletur.  Qui  potest  et 
debet  vetare,  jubet^  (6)  But  in  general  it  must  appear,  that 
the  acts  would  not  have  been  done,  and  that  the  party  must 


(Jj)  If  a  person  maintain  silence,  wBen  in  conscience  be  ought  to  speak, 
equity  Tvill  debar  him  from  speaking  when  conscience  requires  him  to  be 
silent.  Hall  v.  Fisher,  9  Barb.  17.  The  maxim  is  also  applied,  "it  is  a 
fraud  to  conceal  a  fraud."  1  Story's  Eq.  §  390.  And  it  is  no  answer  that 
the  incumbrance  was  concealed  from  prudential  motives,  or  a  mistaken 
sense  of  duty  to  the  party's  employer.  L'Amoreux  v.  Vandenburgh, 
7  Paige,  321. 

If  the  mortgagee  stands  by  at  the  sale  by  the  mortgagor  of  a  part  of  the 
land,  and  receives  the  consideration  ;  that  part  is  discharged  from  the 
mortgage.     McCormick  v.  Digby,  8  Blackf.  99. 

In  the  case  of  Mocatta  v.  Murgatroyd,  (1  P.  ^Vms.  393,)  Lord  Cowper 
decided,  that  a  prior  mortgage  should  be  postponed  to  a  subsequent  one, 
merely  on  the  proof  that  the  prior  mortgagee  was  a  witness  to  the  subsecjuent 
mortgage.  This  case  was  overruled  by  Lord  Ilardwicke  in  the  case  of 
Welford  v.  Beezely,  (1  Vez.  sen.  6,)  and  by  Lord  Thurlow  in  Beckett  v. 
Cordley,  (1  Bro.  C.  C.  357,)  so  far  as  it  charges  a  witness  to  a  deed  with 
knowledge  of  its  contents  merely  from  his  attestation ;  ace.  Clabaugh  v. 
Byerly,  7  Gill,  354.  But  in  none  of  these  cases  was  it  doubted,  that  if  a 
mortgagee  has  actual  knowledge  of  the  contents  of  a  subsequent  mortgage, 
and  nevertheless  stands  by,  and  witnesses  the  execution  of  the  second  mort- 
gage, without  disclosing  his  prior  incumbrance,  this  would  be  such  a  fraud 
in  him,  as  would  authorize  a  court  of  equity  to  postpone  such  prior  incum- 
brance, so  as  to  let  in  the  subsequent  mortgage.  See  BrinkerhofT  v.  Lan- 
sing, 4  Johns.  Ch.  65.  But  a  first  mortgagee's  merely  drafting  a  second 
mortgage  will  not  postpone  him,  unless  he  denied  and  fraudulently  concealed 
his  title.     Paine  v.  French,  4  Ilam.  318. 

Upon  the  principle  stated  in  the  text,  a  mortgagee,  without  notice  of  an 
outstanding  equitable  title,  in  one  who  encourages  him  to  take  the  mortgage, 
or  stands  by  and  makes  no  objection,  will  be  protected  against  it.  Green 
V.  Price,  1  Munf.  449. 

VOL.   I.  49 


578  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

have  conceived  they  would  not  have  been  done,  except  upon 
such  encouragement ;  ^  though,  in  some  cases,  even  the  igno- 
rance of  the  party  misleading  has  been  held  to  make  no  dif- 
ference. In  a  case  of  this  kind,  chancery  will  not  only  refuse 
its  aid  to  enforce  the  mortgage,  but,  upon  a  bill  by  the  party 
injured,  to  qniet  his  title,  will  decree  a  perpetual  injunction 
against  enforcing  the  mortgage,  declare  it  void,  or  order  a 
release  or  reconveyance.^ 

12.  In  a  late  case,^  Woodbury,  J.,  says :  —  "If  parties 
claiming  an  interest  in  land  look  on  and  see  it  conveyed,  or 
take  part  in  the  transaction  without  complaint  or  objection, 
they  are  usually  estopped  in  equity  from  afterwards  setting 
up  a  title  against  the  grantees  and  those  holding  under  them. 
This  rule  rests  rather  on  the  tendency  of  such  conduct  to 
mislead,  than  on  any  deceit  actually  intended  or  actually 
practised  in  each  case." 

13.  In  the  case  of  Barnard  v.  Pope,^  Parker,  C.  J.,  says, 
referring  to  certain  declarations,  made  by  a  claimant  of  land, 
inconsistent  with  his  title :  "  It  not  appearing  when  and 
where  these  declarations  were  made,  or  to  whom,  we  can- 
not presume  they  were  made  under  such  circumstances  as 
would  prove  fraud  on  the  part  of  the  petitioner;  like  the 
cases  where  a  first  mortgagee  or  lessee  has  been  postponed 
in  favor  of  a  second,  in  chancery.  If  it  appeared,  that  when 
William  Barnard  conveyed  to  Peck,  the  petitioner  stood  by, 
knowing  that  his  brother  was  about  conveying  a  moiety, 
and  had  declared  that  he  had  conveyed  his  share  to  him,  the 
case  would  be  analogous  to  those  alluded  to ;  and  would 
deserve  serious  inquiry,  whether  so  manifest  a  fraud  must 
prevail  in  a  court  of  law.  But  the  declarations  offered  to  be 
proved  might  have  been  made  long  after  the  conveyance  to 
Peck,  and  even  to  the  respondent,  so  as  not  to  have  influenced 


1  Ibbotson  V.  Rhodes,  2  Vcrn.  554;        ^  Shepley  v.  Rangelcy,  1  Woodb.  & 
Cootc,  485  ;   Otis  v.  Sill,  8  Barb.  102.        M.  217. 

'^  1  Ilill.  Real  Prop.  452.     See  Law-        *  14  Mass.  437. 
rcnce  r.  Delano,  3  Sandf.  333 ;  Grace 
V.  Mercer,  10  B.  Mon.  157. 


CH.  XXI.]      VOID   AXD    VOIDABLE   MORTGAGES.  —  FRAUD.  579 

the  purchase;  and,  in  that  case,  verbal  declarations  could 
not  operate  to  defeat  a  title." 

14.  Lord  Denman  remarks  upon  this  subject  as  follows : 
"  The  rule  of  law  is  clear  that,  where  one  by  his  words  or 
conduct  wilfully  causes  another  to  believe  the  existence  of  a 
certain  state  of  things,  and  induces  him  to  act  on  that  belief, 
so  as  to  alter  his  own  previous  position,  the  former  is  con- 
cluded from  averring  against  the  latter  a  different  state  of 
things  as  existing  at  the  same  time."  ^  In  a  subsequent 
case,2  his  Lordship  says,  "  The  principle  of  that  case  (Pick- 
ard  V.  Sears,)  may  be  -stated  even  more  broadly  than  it  is 
there  laid  down.  A  party,  who  negligently  or  culpably 
stands  by  and  allows  another  to  contract  on  the  faith  and 
understanding  of  a  fact  which  he  can  contradict,  cannot 
afterwards  dispute  that  fact  in  an  action  against  the  person 
whom  he  has  himself  assisted  in  deceiving." 

14  a.  Thus  w^here  a  mortgagee  consents  to  the  sale  of  the 
property,  or  permits  it  to  be  levied  upon  mthout  asserting 
his  claim,  he  is  barred  from  claiming  title  to  it  as  against 
the  purchaser.-^     (See  s.  34  a.) 

14  b.  So,  as  between  the  mortgagee,  and  the  purchaser, 
of  property  acquired  subsequently  to  the  mortgage,  but 
mentioned  therein  as  being  conveyed  thereby,  the  former, 
by  attending  the  sale  upon  execution,  bidding,  and^omitting 
to  give  the  bidders  notice  of  his  claim,  will  be  estopped  from 
claiming  a  right  to  specific  performance  of  the  contract  to 
give  a  mortgage.* 

14  c.  A.  executed  mortgage  deeds  of  the  same  land,  on 
the  same  day,  to  B.  and  C. ;  and  C.  afterwards  assigned  his 
interest  to  D.  E.,  having  attached  the  premises  as  the  prop- 
erty of  C,  and  recovered  judgment  against  him,  sent  an 
agent  to  D.,  who  had  knowledge  of  such  judgment,  to  inquire 
whether  there  was  any  priority  in  the  deed  under  which  he 
claimed ;  to  which  D.  replied,  "  There  was  not ;  "  that  "  both 

1  Pickiird  V.  Sears,  6  Ad.  &  Ell.  474.         3  Grace  v.  Mercer,  10  B.  Mon.  157. 
-  Gregg  V.  Wells,   10  Ad.  &  Ell.  97,         *  Otis  v.  Sill,  8  Barb.  102. 
98. 


580  THE   LAW   OF  MORTGAGES.  [CH.  XXI. 

deeds  were  delivered  at  the  same  time  ;  "  and  that  "  B.  had 
given  a  writing  to  that  effect."  E.,  thereupon,  took  a  mort- 
gage of  the  premises  from  C.  to  secure  his  debt ;  C.  being, 
at  this  time,  insolvent.  D.'s  representation,  however,  was 
not  true  ;  the  deed  to  B.  having  been,  in  fact,  delivered  first. 
On  a  bill  of  foreclosure,  brought  by  D.  against  E.  it  was 
held,  that  the  plaintiff  was  precluded,  by  these  facts,  from 
claiming  a  priority  of  title.^ 

14  d.  One  having  a  mortgage  upon  the  property  of  his 
son,  encouraged  a  third  person  to  purchase  the  property, 
promising  to  abide  by  any  agreemeat  which  the  son  might 
make  concerning  the  mortgage.  The  son  delivered  the 
mortgage  to  the  purchaser,  but  it  was  redelivered  to  the 
father  for  the  purpose  of  having  it  discharged.  Held,  the 
mortgage  could  not  be  enforced.^ 

14  e.  If  the  mortgagee  permit  the  mortgagor  to  sell,  under 
a  promise  of  payment  from  another  fund  ;  the  purchaser's 
title  does  not  depend  upon  the  fulfilment  of  such  promise.^ 

14/.  Such  consent  may  be  implied  from  his  failure  to 
disclose  his  title,  when  informed  of  the  proposed  sale ;  long 
delay  in  claiming  under  the  mortgage,  until  the  death  of  the 
mortgagor  ;  and  permitting  the  sale  of  other  property  included 
in  the  mortgage.* 

15.  The  following  case  in  New  Hampshire,  though  relat- 
ing directly  to  the  effect  of  this  kind  of  fraud  upon  an  attach' 
ment,  involves  also  the  rights  of  mortgagor  and  mortgagee, 
and  is  valuable  for  the  general  principles  and  the  careful  dis- 
tinctions suggested  by  the  Court. 

16.  The  defendant,  having  notice  that  a  part  of  the  real 
estate  of  his  debtor  was  mortgaged,  apparently  for  its  full 
value ;  and  being  informed  by  the  plaintiff,  another  creditor, 
that  he  proposed  to  procure  an  arrangement  by  which  such 
mortgage  should  be  removed  and  another  mortgage  made 
to  him,  advised  the  plaintiff  to  complete  the  arrangement,  as 


1  Broome  v.  Beers,  6  Conn.  198.  ^^  Tavlor  v.  Cole,  4  Munf.  351. 

^  Curtiss  V.  Tripp,  1  Clark,  318.  *  Ibiil. 


en.  XXI.]      VOID   AXD   VOIDABLE   MORTGAGES.  —  FRAUD.  581 

it  would  be  good  security  for  his  debt.  The  agreement  hav- 
ing been  made,  and  the  first  mortgage  discharged,  before  a 
new  one  was  executed,  the  defendant  laid  an  attachment 
upon  the  land.  The  plaintiff  brings  a  bill  in  equity,  praying 
that  the  defendant  be  enjoined  from  claiming  under  liis 
attachment  contrary  to  the  plaintiff's  title  under  the  mort- 
gage. Held,  he  was  entitled  to  such  decree.^  In  giving  the 
opinion  of  the  Court,  Parker,  C.  J.,  says  :  ^  —  "  We  are  not 
required  to  give  an  opinion  upon  the  question,  whether  a 
creditor  can  by  means  of  an  attachment  avail  himself  of  the 
benefit  of  a  mere  change  of  mortgages,  in  a  case  where  he 
had  no  knowledge  that  such  change  was  intended,  but  de- 
signed merely  to  avail  himself  of  his  right  to  attach  the 
equity  in  (of)  redemption.  If  in  such  case  the  change  was 
to  his  prejudice,  the  mortgage  substituted  being  of  greater 
amount  than  that  previously  existing,  he  might  well  con- 
tend that  his  rights  could  not  thus  be  affected  by  transac- 
tions to  which  he  was  no  party,  and  of  which  he  had  no 
notice.  Even  if  the  new  mortgage  upon  the  land  was  of 
less  amount  than  that  previously  existing ;  still,  if  he  had 
no  knowledge  respecting  the  intention  to  make  an  exchange, 
and  attached  in  good  faith,  he  might  perhaps  well  claim  the 
benefit  of  the  accidental  advantage  he  had  derived,  and  hold 
the  land  whoUy  discharged  from  incumbrance,  because  the 
prior  mortgage  was  removed,  and  the  new  one  executed 
subsequent  to  his  attachment.  We  do  not  undertake  to 
say  that  such  would  be  the  result.  Nor  is  the  case  presented 
one  where  the  attachhig  creditor  has  mere  knowledge  that  a 
change  of  security  is  intended,  and  attaches  with  an  inten- 
tion of  availing  himself  of  the  change,  by  interposing  his 
attachment  before  the  new  mortgage,  in  case  the  parties  to 
the  contemplated  change  shall  perfect  it,  without  the  caution 
of  examining  the  records  to  ascertain  whether  any  creditor 
has  attached.     That  would  be  a  much  stronger  case  than 

1  Buswell   V.  Davis,  10  N.   II.   413.  21^.424,405,428. 

See  Beall  v.  Barclay,  10  B.  Mon.  261. 

49* 


582  THE   LAW   OF  MORTGAGES.  [CH.  XXI. 

the  other ;  but  whether  the  creditor  might  not  in  such  case 
legally  avail  himself  of  the  want  of  caution,  asserting  his 
right  to  attach,  and  take  the  chance  of  the  removal  of  the 
existing  incumbrance,  so  long  as  he  in  no  way  participated 
in  advising  to  the  change  itself,  is  a  question  we  may  pass 
by  at  this  time.  The  evidence  carries  the  present  case  still 
fm-ther.  Without  going  into  the  question,  whether  the 
testimony  does  not  prove  that  the  defendant  advised  to  the 
arrangement  with  the  very  purpose  of  interposing  an  attach- 
ment, after  the  mortgage  to  Damon  &  Stickney  was  removed, 
and  before  that  to  the  plaintiff  was  executed,  it  is  sufficient 
that  being  consulted  respecting  the  arrangement,  he  advised 
the  plaintiff  to  effect  it.  If  he  desired  to  have  any  provision 
made  in  that  arrangement  for  himself,  he  should  have  so 
stated  explicitly.  He  cannot  be  permitted,  after  giving  such 
advice,  to  avail  himself  of  the  exchange  of  the  mortgages, 
and  thereby  obtain  a  security  against  the  plaintiff,  which  he 
could  not  have  had  against  Damon  &  Stickney.  An  attach- 
ment, with  the  purpose  of  obtaining  a  security  prior  to  that 
of  the  plaintiff  under  these  circumstances,  would  not  be  a 
fair  exercise  of  superior  diligence,  but  would  operate  as  a 
direct  fraud  upon  the  plaintiff."  (c) 


(c)  In  Massachusetts,  the  same  question  arose  upon  an  alleged  fraudulent 
attachment.  The  plaintifiF,  proposing  to  purchase  land  which  was  subject  to 
a  mortgage  to  the  defendant,  paid  to  the  mortgagee  the  value  of  his  interest 
in  the  land,  and  the  mortgagee  reconveyed  to  the  mortgagor,  to  enable  him 
to  pass  the  entire  title,  four  days  afterwards,  but  immediately,  and  before 
execution  of  the  deed,  attached  the  land  in  a  suit  against  the  mortgagor, 
and  subsequently  levied  an  execution  upon  it.  In  an  action  of  trespass  for 
such  levy,  held,  the  attachment  was  fraudulent  and  void,  and  the  plaintiff 
entitled  to  judgment,  but,  no  actual  damage  to  the  land  being  proved,  that 
he  could  recover  only  nominal  damages.     Spear  v.  Hubbard,  4  Pick.  143. 

In  June,  1782,  the  demanded  premises  were  mortgaged  for  their  full 
value  to  McFarland  by  Frceland.  In  January,  1792,  the  plaintiff  attached 
the  property  in  a  suit  against  the  mortgagor,  subsequently  recovered  judg- 
ment, and  extended  an  execution  upon  the  estate.  Four  days  after  the 
attachment,  the  plaintiff  was  present  and  assisting  at  a  negotiation  between 


en.  XXI.]      VOID   AXD   VOIDABLE   MORTGAGES. — FRAUD.  583 

17.  One  co-tenant,  owing  one  eighth  of  the  land,  and  hold- 
ing a  mortgage  on  the  other  seven  eighths,  joined  the  other 
in  a  conveyance  of  the  whole,  the  terms  being  as  follows  :  — 
"  Do  hereby  give,  &c.,  that  is  to  say,  the  said,  &c.  does  hereby 
give,  &c.  seven  eighth  parts,  and  the  said,  &c.  one  eighth  part 
of  the  following  piece,  &c.  And  we  do  covenant,  &c.  that  we 
are  lawfully  seized,  &c. ;  that  they  are  free  of  incumbrances, 
and  that  we  have  good  right  to  sell,  &c.  in  the  aforesaid 
proportions."  The  mortgagee  did  not  disclose  his  mortgage 
to  the  purchaser.  Held,  an  action  could  not  be  maintained 
upon  the  mortgage.^  Shepley,  J.,  says  :  —  "  Admitting  the 
covenants  to  be  several  and  not  joint,  the  effect  of  this  trans- 
action is,  that  the  demandant  knowingly  becomes  a  party  to 
the  most  solemn  assurance  made  by  his  mortgagor  under  his 
hand  and  seal,  that  the  seven  eighths  '  are  free  of  all  incum- 
brances,' and  that  '  he  has  good  right  to  sell  and  convey  the 
same.'  And  he  does  this,  while  he  held  a  mortgage  cover 
ing  the  premises,  on  which  was  due  more  than  double  the 

1  Durham  v.  Alden,  2  Appl.  228. 


the  mortgagee  and  mortgagor  and  one  Goddard.  The  mortgage  was  can- 
celled, upon  Goddard's  paying  part  of  the  debt,  and  the  mortgagor's  giving  a 
new  mortgage  of  other  lands,  which  were  also  attached  by  the  plaintiiF  for 
the  balance  due  him.  The  mortgagor  then  conveyed  the  demanded  prem- 
ises with  other  lands,  in  fee,  to  Goddard,  under  whom  the  defendant  claims, 
The  plaintiff  was  present,  assisted  in  casting  the  sums  due,  and  did  not  dis- 
close his  attachment ;  but  he  afterwards,  before  judgment,  informed  the 
mortgagee  of  it,  and  expressed  his  intention  to  levy  his  execution  upon  the 
lands  last  mortgaged,  but,  on  the  mortgagee's  threatening  to  oppose  him, 
and  make  known  his  privity  to  the  transactions,  he  consented  that  the  mort- 
gagee should  have  the  benefit  of  such  mortgage.  Judgment  was  rendered 
for  the  defendant  upon  a  ground  independent  of  the  facts  above  stated.  la 
regard  to  this  part  of  the  case.  Parsons,  C.  J.,  remarks:  —  "Were  we  sit- 
ting as  a  Court  of  Chancery,  with  all  the  equitable  powers  of  that  Court,  we 
ought  to  set  aside  the  plaintiff's  attachment  on  account  of  his  fraudulent 
concealment  of  it.  But  as  the  justice  of  this  case  can  be  attained  by  the 
determination  of  the  first  question,  it  is  not  necessary  to  decide  this  point 
when  sitting  as  a  Court  of  Law."    Foster  r.Briggs,  3  Mass.  313. 


584  THE   LAW   OP  MORTGAGES.  [CH.  XXI. 

amount  of  the  purchase-money,  without  causing  any  excep- 
tion of  his  own  title  to  be  introduced.  He  is  as  much 
bound  by  the  declarations  of  his  mortgagor  as  if  they  were 
his  owji.  It  would  be  a  fraud  upon  the  purchaser  to  permit 
him  now  to  disturb  that  title.  It  would  be  no  legal  excuse, 
if  done  through  ignorance  or  inattention,  for  it  is  more  just 
that  he  should  be  the  loser  under  such  circumstances  than 
that  the  innocent  and  faultless  purchaser  should." 

18.  In  Berrysford  v.  Millward,i  Lord  Hardwicke  granted  a 
perpetual  injunction  against  a  mortgagee,  who  was  casually 
present  at  a  negotiation  between  the  mortgagor  and  another, 
as  to  a  marriage  settlement  on  the  marriage  of  their  children, 
and  concealed  his  mortgage  from  the  father  of  the  intended 
bride,  but  made  a  verbal  promise  to  the  mortgagor  to  rely 
upon  his  personal  security  only.  And  the  Chancellor  there 
refers  to  another  case,  where  a  perpetual  injunction  was 
granted  against  a  mortgagee,  who  had  engrossed  a  deed  of 
settlement,  without  disclosing  that  he  had  a  mortgage  on 
the  estate ;  and  that  too  although  the  mortgagee  was  not  of 
age  at  the  time  he  engrossed  the  deed. 

18  a.  A  mortgagee  requested  the  holder  of  a  note  of  the 
mortgagor,  in  which  the  mortgagee  was  surety,  to  obtain 
judgment  on  the  note,  and  levy  on  and  sell  the  mortgaged 
premises ;  he  was  also  present  at  the  sale,  and  asked  one 
person  to  bid,  and  did  not  object  to  the  sale.  Held,  he  was 
estopped  to  assert  his  title  under  the  mortgage.^ 

19.  An  attorney,  holding  a  mortgage  upon  land,  was  em- 
ployed by  the  mortgagor  to  draw  the  deed  and  assist  in  the 
conveyance  of  a  portion  of  the  premises  to  an  ignorant  pur- 
chaser, and,  although  knowing  that  the  purchaser  was  pay- 
ing the  full  value  of  the  property,  concealed  the  fact  of  the 
mortgage.  Held,  neither  the  attorney,  nor  his  assignee, 
could  enforce  the  mortgage  against  this  portion  of  the 
land.3 


1  1  Barn.  CIi.  101.  ^  L'Amourcux    v.    Vandcnburgh, 

2  Moriurd  v.  Bliss,  12  B.  Mon.  255.  Taigc,  31 G. 


CH.  XXI.]      VOID   AND    VOIDABLE   MORTGAGES. — FRAUD.  585 

20.  A  mortgagee  was  told,  that  a  person  was  drawing,  or 
about  to  draw  another  mortgage  on  the  same  property,  and 
on  another  occasion  he  stated  to  a  party  interested  that  he 
had  examined  the  clerk's  office,  &c.,  and  that  he  had  fre- 
quent transactions  with  the  mortgagor,  whose  embarrass- 
ments were  notorious.  Held,  these  facts  were  sufficient  to 
affect  him  with  notice,  or  at  least  to  avoid  any  right  of  tack- 
ing subsequent  advances  to  the  mortgage  debt.^ 

21.  A  mortgagee  promised  by  a  writing  not  under  seal  to 
extend  the  time  of  payment ;  and  a  third  person  in  conse- 
quence bought  the  estate  from  the  mortgagor.  Held,  the 
mortgagee  was  bound  by  his  promise,  and  could  not  main- 
tain scire  facias  upon  the  mortgage,  until  the  time  of  such 
extension  had  expired.^  Huston,  J.,  says :  ^  —  "  Whether 
such  a  paper  given  to  the  debtor  would  have  been  binding, 
is  not  the  question,  though  if  a  mortgagee  gives  a  writing  to 
his  mortgagor  that  he  will  accept  a  debt  presently  due,  if 
paid  in  instalments  at  specified  times,  and  receives  one  or 
more  of  them  as  they  fall  due,  it  may  in  some  instances  be 
a  great  fraud  to  afterwards  proceed  before  the  other  instal- 
ments fall  due  ;  and  I  am  not  prepared  to  say  that  it  would 
under  all  circumstances  be  void  ;  but  that  is  not  this  case. 
It  is  not  fair  nor  honest  to  make  a  promise  which  induces  a 
man,  a  stranger  to  the  party,  to  pay  his  goods  and  give  his 
labor  to  exchange  his  own  property  for  an  incumbered  prop- 
erty, on  a  promise  not  to  press  the  incumbrance,  and  then 
say,  I  make  nothing  by  the  indulgence  which  I  promised 
you,  and  I  will  not  meet  my  promise.  True  the  mortgage 
was  a  deed  under  seal,  and  this  not  under  seal,  but  it  was, 
though  informal,  enough  to  induce  John  to  exchange  for  that 
land  and  pay  one  third  of  a  debt  which  he  was  not  liable  for, 
and  never  would  have  been,  except  for  that  paper.  And  in 
equity  it  was  as  binding  as  if  more  formahy  drawn,  and 
under  seal  and  witnessed." 


1  Averill  v.  Guthrie,  8  Dana,  82.  3  ji,.  355,  356. 

2  Hoffman  v.  Lee,  3  Watts,  352. 


586  THE   LAW   OF  MORTGAGES.  [CH.   XXI. 

22.  Devise  of  lands  to  children  of  the  testator,  with  a  pro- 
vision that  the  part  devised  to  one  of  them  should  be  subject 
to  the  maintenance  of  his  widow  for  life.  The  widow,  claim- 
ing a  beneficial  interest  in  the  lands  devised,  under  a  mort- 
gage made  to  the  testator  and  herself,  deceptively  acquiesced 
in  the  provisions  of  the  will  for  several  years,  and  thereby 
gave  reason  for  confidence  on  the  part  of  bond  fide  purchasers 
from  the  children  that  such  provisions  were  to  be  final  and 
not  disturbed.  Held,  although  such  purchasers  are  not  proved, 
in  fact,  to  have  acted  on  this  confidence,  she  is  estopped  to 
impeach  their  title.' 

23.  In  Hatch  v.  Kimball,^  the  demandant  gave  in  evidence 
a  quitclaim  deed  from  the  tenant  to  Daniel  Kimball,  dated 
December  23,  1818 ;  the  levy  of  two  executions  on  the  8th 
of  November,  1827 ;  a  conveyance  from  the  execution  credi- 
tors to  the  demandant ;  a  deed  from  Daniel  to  Leggett  and 
Hance,  dated  November  27,  1828  ;  and  a  deed  from  them  to 
the  demandant,  dated  April  25,  1832.  The  tenant  then 
offered  a  bond  from  Daniel  to  him,  dated  December  23,  1818, 
conditioned  to  reconvey  the  property ;  a  mortgage  from  the 
tenant  to  one  Peabody,  dated  May  17,  1811,  to  secure  a  cer- 
tain sum  ;  an  assignment  of  it  by  Peabody  to  Wheelwright 
and  Clark,  April  24,  1812 ;  an  assignment  from  them  to  one 
Buck,  of  June  2,  1827  ;  and  a  deed  from  Buck,  reciting  a 
judgment  on  the  mortgage  and  possession  taken  under  it  in 
1824,  to  the  tenant,  dated  June  2,  1827.  The  levies  were 
duly  recorded,  as  also  all  the  deeds,  all  of  which  covered 
the  demanded  premises.  The  bond  to  reconvey  was  not 
recorded.  The  tenant  had  been  in  possession  thirty  years, 
built  a  house  on  the  land,  and  made  expensive  repairs  both 
before  and  after  Buck's  deed  to  him.  Upon  these  facts,  the 
defendant  having  been  defaulted,  the  default  was  taken  off, 
and  a  new  trial  ordered.  Upon  the  new  trial,  a  verdict  was 
rendered, for  the  demandant.  It  appeared,  that  after  the 
tenant  had  paid  off  the  mortgage,  and  taken  a  release  of  the 

1  Ackla  V.  Ackla,  C  Barr,  228.  -  2  Slicpl.  9. 


en.  XXI.]     VOID   AND   VOIDABLE  MORTGAGES.  —  FRAUD.  587 

premises,  having  conveyed  to  Daniel  and  being  still  in  pos- 
session, he  knowingly  suffered  two  executions  to  be  levied 
on  the  premises  as  Daniel's  without  claiming  title ;  that  he 
pointed  out  the  bounds  at  the  time  of  the  levy,  and  agreed 
to  become  a  tenant  and  pay  rent.  He  continued  the  tenancy 
till  1829,  and  rendered  an  account  of  repairs  made  by  him  to 
the  plaintiff,  who  subsequently  himself  made  repairs  and  put 
in  another  tenant.  No  claim  was  made  under  the  mortsase, 
till  after  the  plaintiff  had  purchased  the  title.  Held,  the 
mortgage,  under  these  circumstances,  was  extinguished ; 
that  it  could  be  kept  alive  only  by  the  equitable  principle  of 
being  most  for  the  mortgagee's  interest,  which  was  rebutted 
by  a  stronger  equity  on  the  part  of  the  demandant,  and  could 
not  be  applied  where  it  would  promote  a  fraudulent  pur- 
pose.i 

24.  The  question  has  arisen,  whether  registration  of  the 
prior  mortgage  constitutes  such  notice  thereof,  as  to  prevent 
a  subsequent  incumbrancer  from  availing  himself  of  any  con- 
cealment or  misrepresentation,  in  order  to  give  priority  to  his 
own  title. 

25.  K"  a  mortgagee  represents  to  a  creditor  of  the  mort- 
gagor, who  has  attached  his  goods,  that  the  mortgage  debt  is 
paid  or  satisfied  and  nothing  due  thereon,  and  the  creditor, 
by  reason  of  such  statement,  relinquishes  the  attachment,  and 
takes  a  mortgage  of  the  land  to  secure  his  debt ;  the  second 
mortgage,  as  between  the  two  mortgagees,  takes  precedence 
of  the  first,  though  the  first  was  on  record  at  the  time  of  such 
representation.  The  Court  remark  :  —  "  Nor  is  it  any  objec- 
tion, that  the  title  of  Piatt  was  by  a  recorded  deed.  It  is 
true,  that  title  by  mortgage-deed  cannot  be  released  by  parol. 
But  although  the  legal  title  might  exist,  as  a  paper  title,  the 
party  may  not  be  able  to  enforce  it  or  render  it  effectual. 
This  species  of  defence,  when  offered  to  control  written  con- 
veyances or  title  deeds,  is  no  more  obnoxious  to  the  objec- 
tion of  permitting  oral  evidence  to  control  written,  than  exists 

1  Ilatch  V.  Kimball,  4  Sbepl.  146. 


588  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

in  the  ordinary  cases  of  setting  aside  conveyances  for  fraud 
upon  oral  proof."  ^  (d) 

26.  The  incumbrance  itself  may  be  valid  against  the  pur- 
chaser of  the  estate,  in  consequence  of  being  recorded  ;  while 
at  the  same  time  equity  will  afford  relief  against  the  party 
concealing  such  incumbrance.  Thus,  in  the  case  of  Napier 
V.  Elam,^  Catron,  C.  J.,  says:  —  "The  mortgage  of  Eastin 
being  registered,  Elam  had  notice  thereof  by  construction  of 
law.  Having  notice,  he  purchased  subject  to  the  incum- 
brance, and  it  was  his  duty  to  pay  the  debt  of  Eastin,  having, 
in  presumption  of  law,  bought  the  property  for  so  much  less. 
Truly,  Elam  was  bound  by  the  previous  mortgage  made  by 
Eastin,  because  the  legal  title  was  in  Crutcher,  the  trustee. 
Constructive  notice  is  one  thing,  actual  knowledge  another. 
As  to  the  trustee,  Crutcher,  Elam  was  bound  to  take  notice 
of  his  title,  because  it  was  legal,  and  because  it  was  regis- 
tered, yet  Erwin  might  conceal  the  fact  from  Elam,  and  sell 
him  property  representing  he  had  the  unencumbered  fee, 
when  in  fact  it  was  mortgaged  for  more  than  it  was  worth." 

27.  It  is  held  in  New  Hampshire,  that  a  mortgagee,  who 
has  knowledge  of  a  subsequent  purchase,  and  has  stood  by 
and  seen  the  purchaser  making  repairs  and  improvements, 
without  speaking  of  the  mortgage  or  making  objections ; 
may  still  set  up  the  mortgage,  if  it  was  at  the  time  on  record, 

1  Piatt  V.  Squire,  12  Met.  494.     But  2  q  Yerg.  IIG. 

see  Clabaugli  v.  Byerly,  7  Gill,  354. 


Ql)  In  the  above  case,  the  suit  was  a  bill  in  equity  to  redeem,  brought  by 
a  second  mortgagee  against  a  first  mortgagee,  who  also  claimed  under  a 
third  mortgage,  which  was  made  under  the  misrepresentation  above  referred 
to  as  to  the  second  mortgage.  The  defendant  set  up  an  absolute  tide  by 
entry  and  continued  possession  for  the  purpose  of  foreclosure,  under  the 
third  mortgage ;  a  tender  having  been  made  by  the  plaintiff  only  of  the 
amount  due  on  the  first  mortgage.  Upon  other  grounds,  the  plaintiff  was 
allowed  to  redeem  a  portion  of  the  mortgaged  estate,  but  as  to  the  rest,  the 
title  under  a  foreclosure  of  the  third  mortgage  appears  to  have  been  sus- 
tained. 


CH.  XXI.]      VOID   AND   VOIDABLE   MORTGAGES.  —  FRAUD.  589 

and  if  it  does  not  appear  that  he  knew  the  purchaser  was 
ignorant  of  the  mortgage,  and  that  he  was  guilty  of  a  fraud- 
ulent concealment.^ 

28.  The  Court  in  Vermont  say :  — "  The  incumbrance 
offered  to  be  shown  was  a  preexisting  mortgage,  which  must 
have  been  upon  record,  or  it  could  not  affect  the  defendant, 
unless  he  had  notice  at  the  time  of  the  conveyance,  in  which 
case  he  could  not  now  complain.  If  the  deed  were  upon 
record,  it  would  be  constructive  notice  to  defendant  as  well 
as  plaintiff,  and  it  does  not  appear  either  of  them  had  notice 
in  fact.  And  if  the  plaintiff  had  notice  in  fact  of  the  incum- 
brance, which  was  upon  record,  and  used  no  means  to  pre- 
vent the  knowledge  coming  to  the  defendant,  he  would  be 
guilty  of  no  legal  fraud  in  selling  and  deeding  to  defendant, 
without  notifying  him  of  the  incumbrance."  ^ 

29.  In  the  late  case  of  West  v.  Jones,^  one  of  two  trustees 
paid  over  only  a  portion  of  the  money,  in  consideration  of 
which  a  mortgage  was  made  to  them  ;  but  the  facts  show- 
ing, that  the  other  trustee  had  been  misled  into  an  advance 
of  the  money  to  his  associate,  in  part  by  the  conduct  and 
declarations  of  the  mortgagor,  and  the  trustee  who  received 
the  money  having  died  insolvent,  the  mortgage  was  held  to 
bind  the  mortgagor  for  the  full  sum  expressed  therein.  The 
Court  say  :  *  —  "  The  plaintiff  relies  on  a  principle  perfectly 
familiar,  not  only  to  courts  of  equity  but  to  courts  of  law, 
namely,  that  where  a  party  has  by  words  or  by  conduct 
made  a  representation  to  another,  leading  him  to  believe  in 
the  existence  of  a  particular  fact  or  state  of  facts,  and  that 
other  person  has  acted  on  the  faith  of  such  representation, 
then  the  party  who  made  the  representation  shall  not  after- 
wards be  heard  to  say  that  the  facts  were  not  as  he  repre- 
sented them  to  be.  This  doctrine  is  not  confined  to  cases 
where  the  original  representation  was  fraudulent.     The  doc- 

1  Marston  v.  Brackett,  9  N.  H.  337.  3  3  ^ng.  Rep.  223. 

-  Per  Redfield,  J.,  Richardson  v.  Bo-  *  Ibid.  227. 

right,  9  Verm.  372. 

VOL.  I.  50 


590  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

trine  not  only  of  this  court,  but  also  of  courts  of  law,  goes 
much  further.  Even  where  a  representation  is  made  in  the 
most  entire  good  faith,  if  it  be  made  in  order  to  induce 
another  to  act  upon  it,  or  under  circumstances  in  which  the 
party  making  it  may  reasonably  suppose  it  will  be  acted  on, 
then  primd  facie,  the  party  making  the  representation  is 
bound  by  it,  as  between  himself  and  those  whom  he  has 
thus  misled." 

29  a.  If  a  second  mortgagee  stand  by  and  see  the  first  in- 
duced by  the  mortgagor  to  release  his  mortgage  and  'take  an 
assignment  of  a  subsequent  security,  supposing  it  to  be  the 
second  ;  the  second  mortgage  will  be  postponed.' 

29  b.  The  rule  in  question  applies  to  a  subsequent  mort- 
gagee, where  the  title  of  the  first  mortgagee  is  originally 
defective,  but  is  strengthened  by  a  title  acquired  from  a  third 
person  after  the  making  of  the  second  mortgage ;  the  second 
mortgagee  having  notice  of  the  first  mortgage. 

29  c.  A.  conveyed  to  B.,  in  mortgage,  land,  the  title  to 
which  was  in  the  United  States.  C.  afterwards  obtained  a 
patent  to  the  land,  and  conveyed  it  to  A.,  who  afterv\^ards 
mortgaged  it  to  D.,  with  notice  of  the  prior  mortgage  to  B. 
Held,  that  the  conveyance  by  C.  to  A.  enured  to  the  benefit 
of  B.,  and  that  D.  took  only  as  second  mortgagee ;  and  the 
rule  was  the  same,  whether  D.  had  actual  notice  of  the  mort- 
gage to  B.,  or  only  constructive  notice,  by  the  registry  of  B.'s 
mortgage. 2 

29  d.  Where  a  note  was  made  by  five  joint  trustees,  and  a 
mortgage  of  the  joint  trust  property  given  to  secure  it,  pur- 
porting to  convey  the  whole  estate,  but  signed  by  only  four 
of  the  trustees,  although  drawn  in  the  name  of  all,  and  it  ap- 
peared, from  the  circumstances,  that  the  other  trustee  must 
have  known  of  the  transaction,  and  that  he  never  made  any 
objection  to  it ;  held,  the  mortgage  was  binding  upon  him  by 
an  equitable  estoppel,  and  the  purchaser  of  the  equity  of  re- 

1  Stafioid  V.  Ballou,  17  Verm.  329.        -  Wavburton  i'.  Mattox,  1  Morris,  3C7. 


CH.  XXI.]      VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  591 

demptioii  of  the  mortgagors  at  a  sheriff's  sale  was  also  bound 
by  iV 

30.  The  general  principle  above  referred  to  has  been 
applied,  in  England,  to  the  case  of  a  mortgagee's  allowing 
the  mortgagor  to  retain  the  title-deeds,  and  thus  create  a 
wrong  impression  as  to  his  title.  (See  eh.  23.)  Thus,  in 
Peter  v.  Russell  it  was  held,  that  if  a  mortgagee  of  a  lease- 
hold estate  lends  the  original  lease  to  the  mortgagor,  for  the 
purpose  of  enabling  him  to  take  up  more  money,  which  is 
accordingly  done,  and  a  second  mortgage  made ;  the  latter 
mortgage  shall  have  priority  of  the  former.^ 

31.  In  Farrow  v.  Rees,^  Lord  Langdale,  M.  R.  says :  — 
"  The  first  objection  made  to  the  mortgage  is,  that  no  title- 
deeds  were  handed  over  to  the  mortgagee.  The  omission  is 
not  of  itseK  sufficient  to  invalidate  the  mortgage  ;  though  a 
mortgagee  may  omit  to  take  the  title-deeds  under  such  cir- 
cumstances as  to  displace  his  priority  in  favor  of  a  subse- 
quent mortgagee." 

32.  Agreement  to  sell  an  estate,  a  part  of  the  price  to  be 
paid  on  execution  of  the  deed,  the  balance  secured  by  mort- 
gage. The  sum  agreed  was  paid,  and  the  deed  executed, 
but,  with  the  title-deeds,  retained  by  the  seller.  Without 
notice  to  the  seller,  the  purchaser  mortgaged  to  a  third  per- 
son, who  did  not  investigate  the  title,  or  inquire  as  to  the 
title-deeds,  and  afterwards  to  the  seller  as  agreed.  Held,  the 
second  mortgage  should  have  priority  of  the  first.^  The 
Court  say :  °  "  The  title  to  chattels  is  evidenced  by  possession  ; 
but  the  title  to  land  is  evidenced  by  written  instruments. 
Therefore  it  was  the  duty  of  Morgan,  before  he  took  his 
mortgage,  to  ask  for  the  deeds ;  and,  if  he  had  asked  for  them, 
he  would  have  learnt  that  they  were  in  possession  of  persons 
\^ho  claimed  a  lien  or  charge  upon  the  tenements,  for  unpaid 
purchase-money.     And  I  think  that  he  must  be  taken  to  have 

1  State  Bank  i;.  Campbell.  2  Rich.  Eq.  *  Worthington  r.  Morgan,  16  Sim. 
179.  547. 

2  2Vern.  726.  ^ib.  551. 
34  Beav.  21. 


592  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

had  notice  of  those  circumstances,  which,  if  he    had  not 
neglected  his  duty,  would  have  come  to  his  knowledge." 

33.  The  rule  above  stated  has  been  usually  applied  to  a 
party  falsely  representing  that  an  incumbrance  was  extin- 
guished, when  it  was  really  still  subsisting.  In  the  following 
case,  the  application  was  reversed.  One  interested  in  an 
estate,  which  was  charged  with  an  annuity,  was  asked  by  a 
third  person,  who  was  about  to  loan  money  to  the  annuitant, 
whether  the  charge  was  still  subsisting,  and  replied  in  the 
affirmative,  when  in  fact  it  had  been  satisfied.  Held,  the 
loan  was  still  a  charge  upon  the  land  against  the  party's 
heirs.^ 

34.  There  is  a  class  of  cases,  in  which  the  general  doctrine 
of  equity  above  considered  has  been  somewhat  restricted,  or 
construed  more  favorably  to  the  rights  of  a  prior  mortgagee. 
In  the  case  of  Whitbread  v.  Jordan,^  Alderson,  B.,  says, 
"  When  a  party  having  knowledge  of  such  facts  as  would 
lead  any  honest  man,  using  ordinary  caution,  to  make  further 
inquiries,  does  not  make,  but,  on  the  contrary,  studiously 
avoids  making;  such  obvious  inquiries,  he  must  be  taken  to 
have  notice  of  those  facts  which,  if  he  had  used  such  ordinary 
diligence,  he  would  readily  have  ascertained." 

34  a.  So,  where  a  mortgagee  had  notice  of  a  previous  lien 
upon  the  land  before  he  took  the  mortgage,  he  cannot  escape 
from  its  effect  by  having  forgotten  it  at  the  time  he  took  the 
mortgage.^  So,  a  mortgagee,  whose  mortgage  is  on  record, 
upon  being  present  at  a  sale  of  the  equity  of  redemption,  on 
execution,  is  not  called  upon  to  give  notice  of  his  mortgage 
to  the  purchasers.^  (See  §  14  a.)  So,  a  denial  by  a  mortgagee 
that  he  has  a  mortgage  will  not  postpone  his  lien,  unless 
he  knows  at  the  time,  that  he  is  inquired  of  with  a  view 
to  a  loan  of  money  on  the  credit  of  the  same  estate.^  So, 
where  money  is  loaned  to  the  mortgagor,  on  the  faith  of  the 
declarations  of  the  mortgagee,  denying  that  he  has  a  mortgage, 

M    Story  on   Eq.   210;  Pearson   v.        ^  Unnt  „_  Qiark,  6  Dana,  56. 
Morgan,  2  Bro.  388.  *  James  v.  Morey,  2  Cow.  246. 

M  Y.  &  Coll.  328.  6  Cliester  v.  Greer,  5  Humph.  26. 


CH.  XXI.]       VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  593 

but  no  security  is  taken  on  the  property  itself,  the  mortgage 
cannot  be  avoided  for  fraud  in  making  the  false  declarations.^ 

35.  So,  it  is  said,  where  one  v^ho  is  "  about  to  lend  money 
on  real  estate,  applies  to  one  who  holds  a  prior  mortgage,  to 
ascertain  whether  he  has  any  incumbrance  on  it ;  there  is  no 
doubt,  in  such  a  case,  that  if  the  person  making  the  applica- 
tion discloses  that  he  is  about  lending  money  on  the  estate, 
he  will  be  preferred  to  the  first  mortgagee,  should  the  latter 
deny  his  having  a  mortgage,  or  assert  that  it  is  satisfied ;  and 
it  seems  agreeable  to  the  dictates  of  reason  and  good  con- 
science, that  his  claim  should  be  postponed  to  that  of  a  person 
whose  confidence  was  inspired  by  the  misrepresentation  of 
one  who  was  acting  for  himself,  and  every  way  competent  to 
inform  him  of  the  truth.  But  in  all  the  cases  which  have 
been  decided  on  this  principle,  the  fraud,  for  such  it  is  sup- 
posed to  be,  has  been  practised  by  a  party  who  has  himself 
an  interest  in  the  subject-matter  of  inquiry,  who  cannot  well 
be  mistaken,  and  whose  conduct  therefore  ought  to  be  con- 
clusive on  him,  when  the  rights  of  third  persons  come  in 
question."  ^ 

35  a.  So,  it  has  been  held  in  Maryland,  that  mere  silence  ^vill 
not  estop  the  prior  mortgagee.  There  must  be  actual  fraud, 
such  as  false  representations,  assurances  of  good  title,  or 
deceptive  silence  when  information  is  asked.  And  the  bur- 
den of  proving  such  fraud  lies  on  the  subsequent  mortgagee.^ 

36.  In  another  case,  the  principle  in  question  was  held  not 
to  apply,  because  the  mortgagee  "  did  not  any  thing  against 
good  conscience,  whereby  to  forfeit  his  mortgage,  he  having 
neither  actually  encouraged  the  plaintiff  to  lend  the  money, 
nor  passively,  as  standing  by  and  concealing  the  mortgage, 
knowing  that  the  plaintifi"  was  about  to  lend  money  on  the ' 
premises."  * 

36  a.  So,  a  subsequent  mortgagee  cannot  avail  himself  of 
this  objection  to  the  prior  mortgage,  if  he  knew  of  its  exist- 

1  Chester  v.  Greer,  5  Humph.  26.  ^  Clabaagh  v.  Byerly,  7  Gill,  354. 

"  Per  Livingston,  J.,  Lee  i".  Munroe,        *  Peter  v.  Rassell,  2'Vern.  727. 
7  Crunch,  368. 

50* 


594  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

ence  when  his  own  was  given,  but  has  delayed  to  object  on 
this  ground.  As  where  he  thus  delayed  for  nearly  eighteen 
months.^ 

37.  In  the  case  of  Jones  v.  Smith,^  Wigram,  V.  C,  goes 
into  an  extended  notice  of  the  decisions  upon  this  subject, 
the  result  of  which  he  states  as  follows :  —  "It  is  indeed 
scarcely  possible  to  declare  a  priori  what  shall  be  deemed 
constructive  notice,  because,  unquestionably,  that  which 
would  not  affect  one  man  may  be  abundantly  sufficient  to 
affect  another.  But  I  believe  I  may,  with  sufficient  accuracy 
for  my  present,  purpose,  and  without  danger,  assert  that  the 
cases  in  which  constructive  notice  has  been  established,  re- 
solve themselves  into  two  classes.  First,  cases  in  which  the 
party  charged  has  had  actual  notice  that  the  property  in  dis- 
pute was  in  fact  charged,  incumbered,  or  in  some  way  affected, 
and  the  Court  has  thereupon  bound  him  with  constructive 
notice  of  facts  and  instruments,  to  a  knowledge  of  which  he 
woul(J  have  been  led  by  an  inquiry  after  the  charge,  incum- 
brance, or  other  circumstance  affecting  the  property  of  which 
he  had  actual  notice ;  and  secondly,  cases  in  which  the  Court 
has  been  satisfied  from  the  evidence  before  it,  that  the  party 
charged  had  designedly  abstained  from  inquiry  for  the  very 
purpose  of  avoiding  notice." 

38.  Before  advancing  money  on  a  mortgage,  the  mortgagee 
inquired  of  the  mortgagor  and  his  wife,  whether  any  settle- 
ment had  been  made  upon  their  marriage,  and  was  informed 
that  a  settlement  had  been  made  of  the  wife's  fortune  only, 
and  that  it  did  not  include  the  husband's  estate  which  was 
proposed  as  the  security,  and  he  afterwards  advanced  the 
mortgage-money  without  seeing  the  settlement  or  knowing 
its  contents.  Held,  the  mortgagee  was  not  affected  with  con- 
structive notice  of  the  contents  of  such  settlement.^ 

39.  If  a  mortgagee  consents  to  the  sale  of  the  mortgaged 
premises  under  an  administration  stilt,  he   may  still   claim 

1  Clabaugli  V.  Byerly,  7  Gill,  354.  ^  Jones  i'.  Smith,  1  Hare,  43. 

"  1  llure,  55. 


CH.  XXI.]      VOID   AND   VOIDABLE  MORTGAGES.  —  FRAUD.  595 

priority  in  the  distribution  of  the  proceeds.'  Wigram,  Vice- 
Chancellor,  says,2  "  that  a  mortgagee  is  entitled  to  his  prin- 
cipal, interest  and  costs,  as  against  the  mortgagor  and  puisne 
incumbrancers  claiming  under  the  mortgagor,  cannot,  as  a 
general  proposition,  be  disputed.  But  it  was  said  that  in  this 
case  the  mortgagee,  consenting  to  a  sale,  had  thereby,  to  the 
extent  at  least  of  the  costs  of  the  sale,  lost  his  priority,  and 
that  the  expenses  of  the  sale  should,  at  all  events,  come  out 
of  the  proceeds  of  the  sale  in  the  first  instance.  I  am  not  of 
that  opinion.  The  mortgagee  consented  that  the  estate 
should  be  sold  free  from  incumbrances.  How  can  such  a 
consent  have  the  effect  of  subjecting  the  security  of  the  mort- 
gagee to  the  costs  of  the  sale.  The  consent  of  the  mortgagee, 
that  the  mode  of  administering  the  equity  of  redemption 
shall  be  by  a  sale  of  the  estate,  free  from  incumbrances,  is  no 
waiver  of  his  priority  ;  although,  where  the  sale  is  peculiarly 
for  his  benefit,  it  may  possibly  be  otherwise." 

39  a.  So,  although,  where  a  mortgagee  directed  and  sanc- 
tioned a  sale  of  the  property,  without  reference  to  the  mort- 
gage or  the  equity  of  redemption ;  received  the  proceeds  ; 
and  did  not  object  to  or  quash  the  sale  ;  his  conduct  implies 
an  admission  of  title  in  the  mortgagor,  and  an  abandonment 
of  any  title  in  himself  inconsistent  therewith,  and  bars  him 
firom  setting  up  the  mortgage  in  equity  against  the  purchaser ; 
yet  it  is  not  so,  where  the  lien  is  acquired  by  attachment  in 
chancery? 

40.  If  a  conveyance  is  made,  with  a  covenant  against  all 
claims  by  the  grantor  or  any  one  under  him,  and  the  grantee 
gives  back  a  bond,  to  reconvey  the  premises  to  the  grantor 
on  demand,  and  the  grantor  afterwards  becomes  assignee  of 
a  mortgage  previously  made  by  him  to  a  third  person  ;  he  is 
not  estopped  from  setting  up  his  title  under  the  mortgage 
against  the  grantee  or  those  claiming  under  him.^  The 
Court  say,^  "  Taking  both  instruments  together,  Daniel  (the 


1  Hepworth  v.  Heslop,  3  Hare,  485.  *  Hatch  v.  Kimball,  2  Shepl.  9. 

"  ^  PP-  486,  487.  5  lb.  p.  13. 

a  Beall  I'.  Barclay,  10  B.  Mon.  261. 


596  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

grantee)  was  to  take  no  beneficial  interest.  He  could  not 
avail  himself  of  the  covenant  in  the  deed  to  him.  He  could 
neither  enforce  its  performance,  nor  recover  damages  if  it  was 
not  performed.  It  was  completely  neutralized  and  defeated 
by  the  condition  in  the  bond.  Stephen  (the  grantor)  then  is 
not  estopped  to  claim  the  land ;  and  he  was  at  liberty  to 
acquire  for  his  own  use  any  collateral  title  or  assurance." 

41.  Where  a  conveyance  of  lands  is  made  by  a  person 
not  the  proprietor,  but  assuming  to  be  his  agent,  such  pro- 
prietor does  not  ratify,  or  estop  himself  to  deny,  the  sale,  by 
taking  notes  and  a  mortgage  back,  the  mortgage  not  refer- 
ring specifically  to  the  deed,  or  containing  any  thing  incon- 
sistent with  the  agent's  want  of  authority,^ 

42.  Though  the  prior  incumbrancer  inaccurately  states  a 
particular  sum  as  the  amount  of  his  charge  ;  yet  if  such  sum 
is  also  stated  to  be  subject  to  an  indefinite  increase,  so  that 
the  subsequent  incumbrancer  could  not  have  relied  upon 
having  any  specific  amount  of  security  ;  he  will  be  held  to 
have  had  notice  of  the  prior  incumbrance.^ 

43.  The  doctrine  of  estoppel  has  been  held  not  applicable 
to  a  feme-covert,  who  merely  stands  by,  without  objection,  at 
a  sale  made  by  her  husband.^  (e) 

1  Spofford  V.  Hobbs,  29  Maine,  148.  ^  Rangeley  i'.  Spring,  8  Shepl.  130. 

^  Gibson  v.  Ingo,  G  Hare,  112. 


(e)  The  qualification  of  the  principle  of  estoppel  has  been  applied  in  favor 
of  one  claiming  adversely  to  a  mortgagee.  Thus,  a  mortgagee  from  an  in- 
solvent of  copyholds,  without  notice  of  the  insolvency,  cannot  claim  priority 
in  equity  to  the  assignees,  on  the  ground,  that  by  neglecting  to  take  posses- 
sion of  the  premises,  or  sell  them,  permitting  the  insolvent  to  retain  posses- 
sion, and  omitting  to  make  their  entry  on  the  Court  rolls,  as  required  by  the 
insolvency  acts,  they  have  enabled  the  insolvent  to  commit  a  fraud  ujion  the 
mortgagee,  though  nineteen  years  have  elapsed  since  the  insolvency.  Cole 
V.  Coles,  G  Hare,  517. 

It  is  provided  by  statute  in  Georgia  and  South  Carolina,  that  a 
mortjca^or  who  mortgages  anew  without  disclosing  in  writing  to  the 
second  mortgagee  the  existence  of   the  first  mortgage,  shall   not  ^  al- 


CH.  XXI.]      VOID    AND   VOIDABLE  MORTGAGES. FRAUD.  597 

44.  Owing  to  the  confidential  relation  between  an  attorney 
and  his  client,  it  has  been  held  in  some  cases,  that  a  mortgage 
from  the  latter  to  the  former  is  invalid,  upon  the  presumption 
of  a  want  of  consideration,  or  an  unfair  bargain.  Thus,  it 
has  been  decided,  that,  where  a  party  to  a  partition  suit, 
pending  the  same,  mortgages  his  interest  to  his  solicitor,  such 
mortgage  is  not  even  prima  facie  evidence  of  the  debt  for 
which  it  purports  to  be  given.^ 

45.  The  assignee  of  such  mortgage,  though  for  valuable 
consideration,  and  without  notice  of  any  equities  between 
the  mortgagor  and  mortgagee,  will  take  it  subject  thereto.^ 

46.  But  a  mortgage  from  client  to  attorney  for  a  just  debt, 
will  not  be  set  aside  in  equity.^  (/) 

lEllisy.Messervie,  11  Paige,  467.  ^  pheslyn    v.   Dalby,  2   Y.  &  Coll. 

2  Ibid.  (Exch.)  170. 


lowed  to  redeem  the  second  mortgage.  But  the  second  mortgagee,  (whose 
deed  is  on  record,  in  Georgia,)  may  redeem  the  first  mortgage.  In  South 
Carolina,  if  a  person  suffer  a  judgment  or  enter  into  a  statute  or  recogni- 
zance binding  his  land,  and  afterwards  mortgage  it,  without  giving  notice  in 
writing  of  the  prior  incumbrance,  unless  within  six  months  from  a  written 
demand  he  clear  off  such  incumbrance,  he  shall  not  be  allowed  to  redeem. 
Prince,  161 ;  1  Brev.  166,  167,  168.  These  statutes  appear  to  be  substan- 
tially reenactments  of  an  act  of  parliament.  Mr.  Greenleaf  says,  (2  Greenl. 
Cruise,  126,  n.)  there  are  provisions  similar  to  this  (the  concealment  of  a 
prior  incumbrance  by  the  mortgagor,  St.  4  Wm.  &  Mary,  ch.  16,)  in  South 
Carolina,  Georgia,  Tennessee,  and  North  Carolina.  But  they  are  all  origi- 
nally of  colonial  enactment,  probably  either  in  the  absence  of  any  registration 
laws,  or  under  the  idea  that  registration  was  not  notice  to  all  the  world.  In 
the  other  States,  the  subject  is  left  to  be  dealt  with  upon  general  law. 

(f)  In  connection  with  the  general  subject  of  void,  etc.  mortgages,  it  may 
be  stated,  that  reference  has  been  made  in  a  former  chapter  (see  ch.  1,  §  20,) 
to  the  mortgages  of  infants,  which,  like  most  of  their  legal  acts,  are  held  to  be 
voidable,  not  void,  and  therefore  susceptible  of  confirmation  upon  their  com- 
ing of  age.  Thus,  Avhere  an  infant  leases,  and  on  coming  of  age  mortgages 
to  the  lessee,  referring  in  the  mortgage  to  the  lease ;  this  is  a  confirmation 
of  such  lease.     Story  v.  Johnson,  2  Y.  &  Coll.  (Exch.)  586. 

In  Robbins  v.  Eaton,  (10  N.  H.  561,)  one  Harvey  conveyed  to  the  de- 
fendant, taking  back  a  mortgage  for  the  price.     The  notes  and  mortgage 


598  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

-were  assigned  to  the  demandant,  who  brings  a  writ  of  entry  for  the  premises. 
It  appeared  that  the  defendant  was  an  infant  at  the  time  of  making  the 
mortn-age,  but  after  coming  of  age  he  occupied  the  premises,  and  offered  to 
sell  them.  Held,  if  the  purchase  and  mortgage  back  were  one  and  the  same 
transaction,  the  defendant's  conduct  after  coming  of  age  was  an  affirmance 
of  the  mortgage ;  otherwise,  if  the  defendant  purchased  and  paid  for  the 
land,  so  that  the  contract  was  complete  and  ended,  and  by  a  subsequent 
transaction  mortgaged  it.  In  the  latter  case,  his  remaining  in  possession 
and  holding  out  against  the  mortgagee,  instead  of  being  an  affirmance  of  the 
morfTan-e,  would  be  an  express  denial  of  Its  validity,  and  a  resistance  of  the 
attempt  to  enforce  a  claim  under  it ;  Avhile,  at  the  same  time,  such  possession 
and  claim  of  the  land,  after  arriving  of  age,  would  be  an  affirmance  of  the 
original  contract  of  purchase. 


CH.  XXII.]  EQUITABLE  MORTGAGE,   ETC.  599 


CHAPTER    XXII. 

EQUITABLE  MORTGAGE.  —  DEPOSIT   OF  TITLE-DEEDS. 

1.  Equitable  liens.  I      11.  Decisions,   establishing   the   doc- 

3.  Deposit   of  deeds;    constitutes    a  j  trine. 

mortgage.  I      31.  American  doctrine. 

4.  Establishment  of  the  doctrine  ;  case  I      32.  Effect  upon  the  title  of  a  mort- 
of  Riissel  V.  Russel.  gagee,  of  leaving  the  deeds  in  the  hands 

6.  Qualifications  and  criticisms  of  the  ]  of  the    mortgagor,    and   a   deposit    bv 
rule;  remarks  of  judges  and  elementary,  him. 
writers.  1 

1.  In  addition  to  the  actual,  conditional  conveyance  of 
land,  which  constitutes  a  legal  mortgage  ;  Courts  of  Equity 
have  recognized  certain  other  liens,  arising  from  the  implied 
agreement  of  parties,  or  the  justice  of  the  case ;  but  not  de- 
pending upon  any  express  transfer  of  title.  These  are  usually 
termed  equitable  mortgages. 

2.  Of  one  of  these  liens,  Chancellor  Kent  gives  the  follow- 
ing account.^ 

3.  It  is  a  doctrine  of  the  Court  of  Chancery,  that  a  deposit 
of  the  title-deeds  of  an  estate  with  a  creditor  of  the  owner, 
constitutes  a  mortgage  of  the  land,  as  against  such  owner  or 
any  purchaser  from  him,  having  actual  or  implied  notice  ; 
and  that  such  mortgage  may  be  enforced  by  a  bill  and  decree 
for  sale  or  foreclosure.  The  rule  is  said  to  have  originated 
in  1783,  and  has  always  met  with  strong  opposition  from 
eminent  judges  ;  but  appears  to  be  now  well  established  in 
the  English  law.  It  is  however  strictly  construed,  and  not 
extended  by  any  implication.  Thus  it  is  held,  that  all  the 
deeds  must  be  actually  and  bond  fide  deposited  with  the 

1  See  ch.  2t),  §  30. 


600  THE  LAW  OF  MOETGAGES.        [CH.  XXII. 

mortgagee  himself.     And  a  parol  agreement  to  deposit  or  to 
mortgage  will  not  be  enforced.^  (a) 

4.  The  following  case  is  said  to  be  the  earliest  one,  in 
which  the  doctrine  was  definitely  settled ;  and,  as  will  be 
seen,  though  held  a  binding  authority  in  subsequent  cases, 
the  principle  of  it  has  been  often  very  seriously  questioned. 

5.  In  Russel  v.  Russel,^  (&)  a  lease  was  pledged  by  one 
who  afterwards  became  bankrupt  to  the  plaintiff,  as  security 
for  a  loan  and  other  indebtedness.  The  pledgee  brings  a  bill 
for  a  sale,  claiming  a  lien  on  the  estate,  which  was  resisted 
by  the  assignee,  on  the  ground,  that  it  would  be  charging 
the  land  without  writing,  contrary  to  the  statute  of  frauds. 
Lord  Loughborough  :  — "  In  this  case,  it  is  a  delivery  of 
the  title  to  the  plaintiff  for  a  valuable  consideration.  The 
Court  has  nothing  to  do  but  to  supply  the  legal  formalities. 
In  all  these  cases  the  contract  is  not  to  be  performed,  but  is 
executed."  Ashhurst,  Lord  Commissioner :  —  "  Where  the 
contract  is  for  a  sale,  and  is  admitted  so  to  be,  it  is  an 
equivocal  act  to  be  explained,  whether  the  party  was  admit- 
ted as  tenant  or  as  purchaser.  So  here  it  is  open  to  explan- 
ation, upon  what  terms  the  lease  was  delivered."  An  issue 
was  directed  to  try  whether  the  lease  was  deposited  as  a 

1  4  Kent,  149,  150.  ^  I  Bro.  238. 


(a)  The  principle,  that  equity  will  consider  that  as  clone  which  ought  to 
be  done,  does  not  apply,  unless  the  Court  in  which  relief  is  sought  has  juris- 
diction of  the  case,  and  authority  to  order  that  the  act  be  done.  Thus  a 
mere  parol  agreement  to  execute  a  mortgage  does  not  fall  within  this  rule. 
Clabaugh  v.  Byerly,  7  Gill,  354. 

(/;)  A  note  to  this  case  says,  that  previously  the  point  was  much  doubted. 
It  was  the  first  determination  on  the  subject,  and  though  confirmed  (after 
the  result  of  the  inquiry,  see  9  Ves.  117,)  by  Lord  Thurlow,  an4  often 
followed,  has  been  uniformly  disapproved  of  upon  principle,  for  the  most 
important  reasons.  It  seems,  from  the  cases,  the  Court  will  not  allow  the 
deposit  to  be  a  security  for  future  advances,  without  the  most  distinct  evi- 
dence of  an  agreement  for  the  purpose. 


CH.  XXII.]  EQUITABLE    MORTGAGE,    ETC.  601 

security  for  the  sum  advanced  ;  and  the  jury  found  that  it 
was. 

6.  In  Ex  parte  Haigh,^  Lord  Eldon  expressed  his  regret  at 
the  establishment  of  this  rule  ;  remarking  that  it  had  led  to 
discussion  upon  the  truth  and  probability  of  evidence  which 
it  was  the  very  object  of  the  statute  of  frauds  entirely  to  ex- 
clude. 

7.  In  Norris  v.  Wilkinson,^  Sir  William  Grant  remarked 
upon  this  subject,  substantially  as  follows.  The  mere  fact 
that  one  man's  title-deeds  are  found  in  another's  possession, 
is  not  conclusive  of  any  purpose  to  mortgage  the  estate.  It 
may  exist  without  any  contract  whatever.  "  If  the  deposit  is 
made  when  the  money  is  advanced,  the  purpose  must  obvi- 
ously be,  to  secure  repayment,  and  there  is  little  to  be  sup- 
plied by  other  evidence.  The  connection  is  not  so  direct, 
betu^een  a  debt  antecedently  due  and  a  subsequent  deposit ; 
nor  is  the  inference  so  plain.  And  where  the  deeds  are  de- 
livered, not  as  a  present  security,  but  only  for  the  purpose  of 
enabling  the  attorney  to  draw  a  mortgage,  which  has  been 
agreed  for,  the  principle  is  wholly  inapplicable.  The  deposit 
of  deeds  is  indeed  held  to  imply  an  obligation  to  execute  a 
conveyance,  whenever  required.  But  in  such  case  the  pri- 
mary intention  is,  to  execute  an  immediate  pledge ;  with  an 
implied  engagement  to  do  whatever  may  be  necessary  to 
render  the  pledge  effectual  for  its  purpose.  But  in  the  case 
supposed,  there  was  no  intention  to  put  the  deeds  into  pledge. 
Nor  does  the  death  of  the  owner,  before  making  the  proposed 
mortgage,  give  any  effect  to  the  transaction  as  a  deposit. 

8.  In  Hooper,  ex  parte,^  a  mortgagee  for  a  term  made  fur- 
ther advances,  and  died.  The  mortgagor  having  become 
bankrupt,  the  executors  of  the  mortgagee  filed  a  petition, 
alleging  an  understanding  and  agreement,  that  the  sum  due 
for  further  advances  should  be  tacked,  and  a  further  mort- 
gage made  therefor,  and  praying  a  sale.     Lord  Eldon  said  :* 

1  11  Ves.  403,  404,  and  note.  -  12  Vcs.  197,  198,  199  ;  ace.  Chap- 

3  19  Ves.  477.  *  Ibid.  478,  479.     man  i.-.  Chapman,  3  Eng.  Law  &Eq.  70. 

VOL.    I.  51 


602  THE  LAW  OF  MORTGAGES-         [CH.  XXII. 

"  With  great  deference  to  Lord  Thurlow,  who  first  held,  that 
the  deposit  of  a  deed  necessarily  implied  an  agreement  for  a 
mortgage,  I  repeat,  that  this  decision  has  produced  consider- 
able mischief ;  and  that  the  case  of  Russel  v.  Russel  ought 
not  to  have  been  decided  as  it  was.  There  never  was  a  case, 
where  a  man,  having  taken  a  mortgage  by  a  legal  convey- 
ance, was  afterwards  permitted  to  hold  that  estate  as  further 
charged,  not  by  a  legal  contract,  but  by  inference  from  the 
possession  of  the  deed.  The  other  cases  have  gone  far 
enough,  indeed  too  far ;  and  I  will  not  add  to  their  author- 
ity, where  there  are  circumstances  distinguishing  the  case 
before  me."  (c)  The  order  was  confined  to  the  legal  mort- 
gage. 

9.  "  On  a  review  of  the  decided  cases,"  says  Mr.  Coote,^ 
"  establishing  this  mode  of  mortgage  security,  it  is  perhaps  to 
be  regretted,  that  the  old  law  was  not  adhered  to,  and  the 
principle  on  which  the  statute  of  frauds  was  founded  more 
respected.  For  although  equity,  by  declaring  the  deposit 
itself  to  be  evidence  of  an  agreement  executed,  has  contrived 
to  evade  the  strict  and  literal  wording  of  the  statute,  yet  it  is 
manifest  that  the  door  has  been  in  some  degree  open  to  fraud 
and  perjury ;  nor  does  a  creditor  seem  to  deserve  much  favor, 
who  will  not  be  at  the  trouble  of  a  few  lines  in  writing,  if  he 
is  desirous  to  have  a  charge  on  his  debtor's  estate.  If  the 
debtor  denies  that  the  deposit  was  intended  to  cover  future 
advances,  or  if  he  insist  that  the  deeds  were  not  delivered  by 

1  Coote,  222. 


(f)  In  the  same  case  Lord  Eldon  furtbcr  remarked,  that  it  was  an  error 
to  suppose,  that  a  deposit  of  deeds  can  refer  to  nothing  but  an  intention  to 
subject  the  estate.  A  deposit  may  be  of  considerable  use,  without  any  such 
object.  Tiie  right  to  hold  the  deeds,  and  so  to  work  out  payment,  is  of 
great  value. 

In  Whitbread's  case,  (19  Ves.  211,)  Lord  Eldon  is  reported  to  have  said, 
that  the  decisions  upon  this  subject  amount  to  a  repeal  of  the  statute  of 
frauds. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  603 

way  of  deposit,  but  with  a  different  intent,  resort  must,  in 
many  cases,  be  had  to  parol  evidence  ;  and,  as  remarked  by 
Lord  Eldon,  'the  mischief  of  all  these  cases  is,  that  the  Court 
is  deciding  upon  parol  evidence  with  regard  to  an  interest  in 
land  within  the  statute  of  frauds.'  " 

10.  Judge  Story  says  ;! — "It  is  now  settled  in  England, 
that  if  the  debtor  deposits  his  title  deeds  to  an  estate  with  a 
creditor,  as  security  for  an  antecedent  debt,  or  upon  a  fresh 
loan  of  money,  it  is  a  valid  agreement  for  a  mortgage  between 
the  parties,  and  is  not  within  the  operation  of  the  statute  of 
frauds.  This  doctrine  has  sometimes  been  thought  difficult 
to  be  maintained,  either  upon  the  ground  of  principle  or  of 
public  policy.  And  although  it  is  firmly  established,  it  has 
of  late  years  been  received  with  no  small  hesitation  and  dis- 
approbation, and  a  disposition  has  been  strongly  evinced,  not 
to  enlarge  its  operation.  It  is  not  therefore  ordinarily  applied 
to  enforce  parol  agreements  to  make  a  mortgage,  or  to  make 
a  deposit  of  title-deeds  for  such  a  purpose  ;  but  it  is  strictly 
confined  to  an  actual,  immediate,  and  bona  fide  deposit  of 
the  title-deeds  with  the  creditor,  as  a  security,  in  order  to 
create  the  lien.  Such  an  equitable  mortgage  will  not,  how- 
ever, avail  against  a  subsequent  mortgagee,  whose  mortgage 
has  been  duly  registered,  without  notice  of  the  deposit  of  the 
title-deeds." 

11.  Notwithstanding  these  very  reasonable  strictures,  how- 
ever, a  long  series  of  cases  seems  to  have  fully  established 
the  doctrine  above  stated,  as  a  rule  of  English  equity  juris- 
prudence. It  is  unnecessary  to  cite  all  of  them  ;  but  some 
of  the  principal  will  be  summarily  referred  to. 

12.  In  RoUeston  v.  Morton,^  the  Lord  Chancellor  of  Ireland 
said :  "  If  a  man  has  power  to  charge  certain  lands,  and  agrees 
to  charge  them,  in  equity  he  has  actually  charged  them,  adid 
a  court  of  equity  will  execute  the  charge." 

13.  In  Keys  v.  Williams,^  Lord  Abinger  thus  vindicates 

1  2  Storv's  Eq.  ^  1020.  3  3  y.  &  Coll.  Exch.  GO,  61. 

'^  1  Dr.  &  War.  195. 


604  THE   LAW    OF   MORTGAGES.  [CH.  XXII. 

the  policy  and  reasonableness  of  the  rule  :  —  "  The  doctrine 
of  equitable  mortgages  has  been  said  to  be  an  invasion  of  the 
statute  of  frauds  ;  and  no  doubt  there  was  great  difficulty  in 
knowing  how  to  deal  with  deposits  of  deeds  by  way  of  security 
after  the  passing  of  that  statute.  But  in  my  opinion  that 
statute  was  never  meant  to  affect  the  transaction  of  a  man 
borrowing  money  and  depositing  his  title-deeds  as  a  pledge 
of  payment.  A  court  of  law  could  not  assist  such  a  party  to 
recover  back  his  title-deeds  by  an  action  of  trover,  the  answer 
to  such  an  action  being,  that  the  title-deeds  were  pledged  for 
a  sum  of  money,  and  that,  till  the  money  is  repaid,  the  party 
has  no  right  to  them.  So,  if  the  party  came  into  equity  for 
relief,  he  would  be  told,  that  before  he  sought  equity  he  must 
do  equity,  by  repaying  the  money  in  consideration  for  which 
the  deeds  had  been  lodged  in  the  other  party's  hands.  The 
doctrine  of  equitable  mortgages,  therefore,  appears  to  have 
arisen  from  the  necessity  of  the  case.  It  may,  however,  in 
many  cases,  operate  to  useful  purposes,  and  is  certainly  not 
injurious  to  commerce.  In  commercial  transactions  it  may 
be  frequently  necessary  to  raise  money  on  a  sudden,  before 
an  opportunity  can  be  afforded  of  investigating  the  title-deeds, 
and  preparing  the  mortgage.  Expediency,  therefore,  as  well 
as  necessity,  has  contributed  to  establish  the  general  doctrine, 
although  it  may  not  altogether  be  in  consistency  with  the 
statute." 

14.  In  Pain  v.  Smith,^  the  plaintiff  filed  a  bill,  for  the  pur- 
pose of  giving  effect  to  an  equitable  security  made  by  the 
deposit  of  deeds,  and  praying  a  sale  of  the  estate.  Per  Sir 
John  Leach,  M.  R. :  "  If  the  contract  between  the  plaintiff  and 
the  defendant  had  been,  that  the  deeds  should  be  deposited 
as  a  security  until  a  legal  mortgage  could  be  prepared,  there 
would  be  ground  for  the  argument  of  the  defendant ;  "  (name- 
ly, that  if  a  sale  were  decreed,  an  equitable  mortgagee  would 
be  in  better  situation  than  a  legal  mortgagee.)     "  But  there 


1  2  My.  &  K.  417.     Sec  Tvlcc  v,  Wchh,  C  Bctiv.  552  ;  Lewtliwaitc  v.  Clarkson, 
2  Y.  &  Coll.  Exch.  372. 


en.  XXII.]  EQUITABLE   MORTGAGE,  ETC.  605 

being  here  a  general  equitable  charge  upon  the  property,  the 
plaintiff  is  entitled  to  a  sale  for  satisfaction  of  that  charge, 
and  such  has  been  the  constant  course  of  the  Court." 

15.  In  Mandeville  v.  Welch,'  Judge  Story  says :  "  It  may 
be  admitted,  that  according  to  the  course  of  the  authorities 
in  England,  and  as  applicable  to  the  state  of  land  titles  there, 
a  deposit  of  title-deeds  does  in  the  cases  alluded  to,  create  a 
lien,  which  will  be  recognized  as  an  equitable  mortgage,  and 
will  entitle  the  party  to  call  for  an  assignment  of  the  property 
included  in  the  title-deeds.  The  doctrine  proceeds  upon  the 
supposition,  that  the  deposit  is  clearly  established  to  have 
been  made  as  security  for  the  debt ;  and  not  upon  the  gTound 
that  the.mere  fact  of  a  deposit  unexplained  affords  such  proof." 

16.  Where,  in  order  to  prevent  immediate  proceedings 
against  a  debtor,  he  deposited  his  title-deeds  with  the  attorney 
of  his  creditor,  for  the  purpose  of  preparing  a  mortgage  ;  held, 
an  equitable  mortgage  of  the  estate.^  Lord  Abinger  says:" 
"  It  has  been  very  ably  argued,  that  the  circumstance  of  the 
deed  having  been  deposited,  not  as  a  present  security,  but 
with  a  view  to  a  future  security,  gives  rise  to  such  a  distinc- 
tion. Certainly,  if  before  the  money  was  advanced  the  deeds 
had  been  deposited  with  a  view  to  prepare  a  future  mortgage, 
such  a  transaction  could  not  be  considered  as  an  equitable 
mortgage  by  deposit ;  but  it  is  otherwise  where  there  is  a 
present  advance,  and  the  deeds  are  deposited  under  a  promise 
to  forbear  suing,  although  only  for  the  purpose  of  preparing 
a  future  mortgage.  If  it  were  necessary  to  decide  the  specific 
point,  I  should  say,  that  an  agreement  to  grant  a  mortgage 
for  money  already  advanced,  and  a  deposit  of  deeds  for  the 
purpose  of  preparing  a  mortgage,  is,  in  itself,  an  equitable 
mortgage  by  deposit ;  but  here  the  deposit  was  evidently 
made  as  a  present  security,  as  weU  as  with  a  view  of  pre- 
paring a  future  mortgage.  In  default  of  payment  of  principal 
and  interest,  within  the  usual  time,  a  sale  must,  take  place." 

1  5  Wheat.  284.  -  Kevs   v.    Williams,  3   Y.   &    Coll. 

3  lb.  61,62.  Excb.  55. 

51* 


606  THE   LAW   OF   MORTGAGES.  [CH.  XXII. 

17.  In  Hockley  v.  Bantock/  executors  and  trustees  agreed 
to  give  a  residuary  legatee,  as  security  for  his  share,  a  legal 
mortgage  of  real  estate,  which  they  had  taken  for  a  debt  due 
to  the  testator,  and,  for  the  purpose  of  having  the  mortgage 
prepared,  delivered  the  title-deeds  to  the  agents  of  the  legatee. 
Held,  he  thereby  acquired  an  equitable  lien  as  against  the 
executors,  though  not  as  against  the  other  legatees. 

18.  In  Hodge  v.  Attorney- Gen eral,^  the  title-deeds  of  a 
leasehold  estate  were  deposited  with  bankers,  by  way  of 
equitable  mortgage,  to  secure  the  balance  of  a  running 
account.  The  debtor  being  afterwards  convicted  of  felony, 
the  creditors  filed  a  bill  against  the  attorney-general  for  a 
sale.  Held,  the  legal  title  being  in  the  Crown,  the  Court 
could  not  decree  a  sale,  nor  a  conveyance  of  the  legal  title, 
but  only  declare  the  plaintiffs  entitled  to  possession,  tiU  the 
Crown  should  redeem. 

19.  In  Whitworth  v.  Gaugain,^  it  was  held,  that  an  equi- 
table mortgagee,  by  deposit  of  title-deeds,  might  enforce  his 
lien  in  preference  to  another  creditor,  who  subsequently,  with- 
out notice,  recovered  judgment  against  the  debtor,  and 
obtained  possession  by  writ  of  elegit  and  attornment  of  the 
tenants.  Shadwell,  V.  C,  says  :  "  The  plaintiffs  are  equitable 
mortgagees,  by  a  deposit  of  title-deeds,  accompanied  with  a 
memorandum  in  writing,  explaining  that  the  purpose  of  the 
deposit  was  to  secure  a  then  existing  debt  and  future  advan- 
ces. No  one,  I  apprehend,  could  seriously  contend  that  the 
memorandum  in  writing  above  set  forth  had  not  the  effect  of 
charging  the  property  as  between  the  mortgagees  and  the 
mortgagor."  His  Lordship  proceeds  to  lay  down  the  estab- 
lished principle,  that  a  judgment  creditor  stands  in  place  of 
the  debtor,  and  can  take  in  execution  only  what  belongs  to 
him,  subject  to  every  liability  binding  upon  the  debtor  him- 
self. This  principle  applies  to  all  other  equitable  incum- 
brancers, and  should  therefore  be  held  alike  applicable  to  an 

1  1  lluss.  141.  2  3  Y.  &  Coll.  Excli.  342.  '^  3  Ilarc,  416,  424,  429. 


CH.  XXII.]  EQUITABLE   MORTGAGE,  ETC.  607 

equitable  mortgagee,  whose  title  is  no  more  imperfect  than 
that  of  a  cestui  que  trust.  His  Lordship  further  remarked, 
that  the  argument,  of  the  judgment  creditor's  having  an  equal 
equity  and  in  addition  the  legal  title,  and  therefore  a  right 
which  ought  to  prevail  over  the  plaintiff's,  took  for  granted 
the  whole  question  in  dispute,  assuming  that  the  creditor 
might  seize  what  did  not  actually  belong  to  the  debtor. 

19  a.  A.,  insisting  that  B.,  the  owner  of  an  agreement  for 
a  building  lease,  had  deposited  it  to  secure  to  him  X900, 
claimed  payment  from  the  administrator  of  B.,  who  had 
expended  his  own  money  in  •finishing  the  houses,  and 
obtained  leases  from  the  lessors,  and  questioned  the  deposit 
and  the  extent  of  the  advance,  if  any  had  been  made.  Held, 
the  affidavits  proving  a  deposit,  the  Court  was  bound  to  act 
upon  them  ;  that  the  deposit  entitled  A.  to  a  mortgage,  and 
gave  him  a  right  to  payment.  Decree  for  an  account  and 
sale  of  the  houses.' 

■  20.  In  Ex  parte  Langston,^  on  the  14th  of  June,  title-deeds 
were  deposited  as  security  for  advances.  Between  this 
time  and  June  20th,  further  advances  were  made,  and  on  the 
latter  day  a  memorandum  was  signed  by  the  debtor,  stating 
that  the  deposit  was  made  to  secure  the  several  advances. 
The  same  day,  he  became  bankrupt.  Held,  the  memorandum 
could  not  prejudice  the  creditor's  claim,  being  perfectly  con- 
sistent with  it,  and  a  ratification  of  the  prior  agi-eement ;  and 
that  he  was  entitled  to  hold  the  deeds  as  security, 

21.  Mortgage  by  deposit,  to  secure  the  debtor's  account, 
until  such  account  should  not  exceed  £100.  The  debtor 
having  died,  owing  more  than  that  sum  ;  held,  the  deposit 
was  a  security  for  the  whole  sum,  and  not  merely  for  the 
excess  over  ,£100.3 

22.  The  deposit  may  be  made  either  to  the  creditor  him- 
self, or  to  some  third  person  over  whom  the  depositor  has  no 
control.     But  not  to  the  wife  of  the  depositor,  nor  a  fortiori 

1  Sims  V.  Helling,  9  Eng.  Law  &  Eq.         -  17  Vcs.  230. 
45.  3  Ashton  V.  Dalton,  2  Coll.  565. 


608  THE   LAW    OF   MORTGAGES.  [CH.  XXII. 

if  permitted  to  be  retained  by  the  debtor,  though  he  deliver 
to  the  creditor  a  memorandum  to  that  effect.  Nor  will  the 
equitable  deposit  in  the  hands  of  one  person  be  extended  to 
an  advance  made  by  another,  unless  the  party  holding  the 
deeds  is  a  mere  trustee  and  has  made  no  advances.' 

23.  In  Brizick  v.  Manners,^  the  owner  of  land  delivered  his 
title-deeds  to  an  attorney  for  the  purpose  of  having  a  mort- 
gage drawn,  but  died  before  its  completion.  The  creditor 
attempted  to  establish  a  title  as  equitable  mortgagee,  but  the 
point  was  given  up. 

24.  An  equitable  mortgagee  may  himself  create  an  equi- 
table mortgage,  by  a  deposit  of  the  deeds,  though  he  does  not 
deliver  over  the  memorandum.^ 

25.  A  mere  deposit,  without  a  memorandum,  will,  as 
against  strangers,  create  an  equitable  mortgage,  only  when 
the  possession  of  the  title-deeds  can  be  accounted  for  in  no 
other  way,  or  the  holder  is  a  stranger  to  the  title  and  the 
lands.* 

26.  Such  mortgage  has  preference  over  a  subsequent  pur- 
chaser or  mortgagee  of  the  legal  estate  with  notice.  And 
notice  will  be  implied  from  the  nature  of  the  transaction  ;  as, 
if  the  latter  was  informed  that  the  creditor  had  possession  of 
the  deeds,  and  neglected  to  inquire  for  what  purpose ;  this 
being  gross  negligence.^ 

27.  But  this  rule  does  not  apply,  where  the  holder  of  the 
deeds  is  solicitor  of  the  debtor ;  such  deposit  being  in  this 
case  according  to  the  usual  course  of  business.^ 

28.  Such  deposit  gives  a  lien  upon  all  the  property  included 
in  the  deeds,  unless  an  intention  is  clearly  proved  to  the  con- 
trary." 

29.  With  regard  to  the  mode  oi  foreclosing'  a  mortgage  of 
this  description,  Mr.  Coote  says,  the  proper  decree  would 
seem  to  be  for  a  foreclosure  and  conveyance.  The  right  to  a 
sale  does  not  appear  so  clear,  though  in  some  cases  a  sale 

'Cootc,  217.  "Cootc,  221.  Mliern  r.  iMill,  13  Vcs.  114. 

■■^  9  Mod.  284.  '  lb.  217.  «  Bozon  v.  Williams,  3  Y.  &  Jerv.  150. 

^  Ashton  V.  Daltoii,  2  Coll.  565. 


CH.  XXII.]  EQUITABLE   MORTGAGE,    ETC.  609 

has  been  decreed.  Such  right  clearly  exists,  where  the  mem- 
orandum of  deposit  provides  for  a  formal  mortgage  with 
power  of  sale,  or  where  the  bill  is  filed  against  the  represen- 
tatives of  one  deceased.  So  a  sale  would  seem  proper,  when 
the  defendants  are  infants.^ 

30.  Six  months  will  be  allowed  for  redemption,  although 
from  the  nature  of  the  transaction  no  interest  is  due.- 

31.  With  regard  to  the  American  doctrine  upon  this  sub- 
ject, Mr.  Greenleaf  remarks  :^  — "  Whether  the  deposit  of 
title-deeds  alone  will  create  an  equitable  lien  on.  the  land,  in 
any  of  the  United  States,  may  well  be  doubted.  No  case  is 
found,  in  which  this  doctrine  has  been  actually  administered, 
though  in  several  cases  it  has  been  adverted  to,  as  a  rule  of 
law  in  England."  {d) 

32.  In  analogy  with  the  doctrine  above  stated,  there  seems 
to  have  been  an  ancient  rule  in  Chancery,  that  if  a  first  mort- 
gagee voluntarily  left  the  title-deeds  with  the  mortgagor,  he 
should  be  postponed  to  a  subsequent  mortgagee,  without 
notice,  and  in  possession  of  the  deeds  ;  because  he  thereby 
enabled  the  mortgagor  to  impose  upon  others,  who,  in  the  ab- 
sence of  any  registry,  looked  for  their  security  only  to  the  deed, 
and  the  mortgagor's  possession.  Thus  in  Head  v.  Egerton,* 
the  Lord  Chancellor  said,  it  was  hard  enough  upon  a  subse- 
quent mortgagee,  that  he  had  lent  his  money  upon  lands 
subject  to  a  prior  mortgage,  without  notice  of  it,  and  therefore 

1  Cootc,  220.  ^  Ibid.  221.  »  2  Greenl.  Cruise,  85,  n.         *  3  P.  Wms.  279. 


{(1)  In  the  case  of  Rockwell  v.  Hobby,  (2  Sandf.  Ch.  9,)  where  there  had 
been  an  advance  of  money,  and  the  title-deeds  were  found  in  possession  of 
the  lender,  there  was  held  to  be  an  equitable  mortgage. 

So  the  deposit  of  a  bond  and  accompanying  mortgage  of  leasehold  prop- 
erty, (given  without  consideration,  for  the  purpose  of  raising  money,)  as 
security  for  a  loan  ;  has  been  held  to  give  a  claim  by  the  assignee  against 
the  mortgagor.     Day  r.  Perkins,  2  Sandf  Ch.  359. 

It  has  been  held  in  Maine,  that  a  grantee,  whose  deed  is  not  recorded, 
cannot  create  an  equitable  mortgage  by  a  pledge  of  the  dcLMl,  and  thus  de- 
feat a  prior  recorded  mortgage.     Hall  v.  McDuft',  11  Sliepl.  311. 


610  THE  LAW  OF  MORTGAGES.         [CH.  XXII. 

he  could  not  add  to  his  hardship,  by  taking  away  from  him 
the  title-deeds  and  giving  them  to  the  elder  mortgagee,  un- 
less the  first  mortgagee  paid  him  his  money ;  especially  as 
the  first  mortgagee,  by  leaving  the  title-deeds  with  the  mort- 
gagor, had  been  in  some  measure  accessory  in  drawing  in 
the  defendant  to  lend  his  money.  But  Chancellor  Kent, 
upon  a  review  of  the  cases,  denies  the  existence  of  any  such 
rule  ;  or  that  it  is  now  in  force,  if  ever  adopted  ;  and  lays  it 
down  as  the  settled  principle  on  the  subject,  that  a  subse- 
quent mortgage  shall  not  have  priority  for  the  reason  stated, 
unless  in  case  of  fraud  or  gross  negligence,  or  a  voluntary, 
distinct,  and  unjustifiable  concurrence,  on  the  part  of  the  first 
mortgagee,  to  the  retaining  of  the  deeds.  More  especially 
is  the  rule  inapplicable  in  the  United  States,  where  deeds  are 
uniformly  recorded.  Hence  it  was  held,  that  in  case  of  the 
mortgage  of  a  leasehold  estate,  leaving  the  lease  with  the 
mortgagor  was  no  evidence  of  fraud,  because  registration  is 
a  beneficial  substitute  for  the  deposit  of  the  deed,  and  gives 
better  and  more  effectual  security  to  subsequent  mort- 
gagees.' 

33.  So  Judge  Story  says  :  —  "  In  cases  not  affected  by  the 
registry  acts,  the  mere  fact,  that  a  first  mortgagee  has  left 
the  title-deeds  in  the  possession  of  the  mortgagor,  without 
any  attendant  circumstances  of  fraud,  will  not  be  sufficient 
to  postpone  such  first  mortgagee  to  a  second,  who  has  taken 
the  title-deeds  with  his  mortgage,  without  any  notice  of  the 
prior  mortgage."  - 

34.  Mr.  Coote  says,  how  far  possession  of  the  title-deeds 
gives  a  subsequent  mortgagee  the-  preference  over  a  prior 
one,  has  been  a  question  of  frequent  discussion.  The  prin- 
ciple to  be  derived  from  the  cases  is  said  to  be,  that  want  of 
possession  of  the  title-deeds  by  the  first  mortgagee  is  open 
to  explanation,  and  is  only  primd  facie^  not  conclusive  evi- 

J  Berry  v.  Mutual,  &(;.,  2  Jolins.  Cli.  23,'}.      Sec  Ryall  r.  Rolle,  1  Atk.  1G8: 

COS,  609  ;  JohiiSDTi   v.  Slafjf?,  2  Johns.  1  Vcs.  .'500. 

510 ;  !icc.  Van  Meter  v  MeFaddiii,  8  !'>.  -  2  Story's  Eq.  §  1020. 
Moil.  4.'J.j  ;  Sliitz  v.  DielTeiil):icli.  3  Barr, 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  6ll 

dence  of  fraud.^  (e)  And  it  has  been  very  recently  held,  that 
a  legal  mortgagee  will  not  be  postponed  to  a  prior  equitable 
one,  on  the  ground  of  not  having  got  in  the  title-deeds,  unless 
guilty  of  fraud  or  gross  or  wilful  negligence.  As  where  he 
has  made  bond  fide  inquiry  for  them,  and  received  a  reason- 
able excuse  for  their  non-delivery .^ 

1  Coote,  486.  -  Hewitt  v.  Looscmore,  9  Eng.  Law  Si,  Eq.  35. 


(e)  The  doctrine  above  referred  to,  as  to  the  effect  of  depositing  title- 
deeds,  has  been  stated  as  a  rule  of  equity.  Questions  upon  the  same  general 
subject  have  sometimes  occurred  in  courts  of  law.  In  Goodtitle  v.  Morgan, 
(1  T.  R.  755,)  it  was  held,  that  a  second  mortgagee,  who  takes  an  assign- 
ment of  a  term  to  attend  the  Inheritance,  and  has  all.  the  title-deeds,  may 
recover  in  ejectment  against  the  first  mortgagee,  not  having  had  notice  of 
the  prior  mortgage.  Ashhurst,  J.,  says,  (lb.  762)  "No  man  ought  to  be  so 
absurd  as  to  make  a  purchase  without  looking  at  the  title-deeds  ;  if  he  is,  he 
must  take  the  consequence  of  his  own  negligence.  If  the  first  mortgagee 
had  used  ordinary  precaution,  he  must  have  known  that  this  term  was  then 
outstanding.  And  if  he  did  know  of  it  and  neglected  to  take  an  assignment 
of  it,  it  was  enabling  the  mortgagor  to  commit  a  fraud  by  mortgaging  the 
same  estate  again.  By  this,  therefore,  he  became  particeps  crhiiinis."  Bul- 
ler,  J.,  says,  (lb.)  "  It  is  an  established  rule  in  a  court  of  equity  that  a 
second  mortgagee,  who  has  the  title-deeds,  without  notice  of  any  prior  incum- 
brance, shall  be  preferred.  If  this  has  become  a  rule  of  property  in  a  court 
of  equity,  it  ought  to  be  adopted  in  a  court  of  law." 

The  assignees  of  a  bankrupt,  who  owned  the  moiety  of  an  estate  in  a  reg- 
ister county,  brought  assumpsit  for  a  moiety  of  the  rents  against  the  owner 
of  the  other  half,  who  had  received  the  whole  rents.  It  appeared,  that  the 
defendant  had  lent  the  bankrupt  a  certain  sum,  to  complete  his  part  of  the 
purchase,  it  being  agreed  that  the  title-deeds  should  be  deposited  as  security. 
The  defendant  afterwards  took  an  assignment  of  the  bankrupt's  moiety,  but 
the  assignment  was  not  registered.  The  assignment  from  the  commissioners 
to  the  assignees  was  duly  registered,  and  therefore  had  preference  over 
the  unregistered  deed.  Held,  the  action  could  not  be  maintained,  as  the 
equitable  mortgagee  might  have  retained  the  rents  against  the  bankrupt,  if 
he  had  been  solvent,  and  might  therefore  do  the  same  against  his  assignees ; 
and  the  requisition  of  registry  did  not  apply  to  an  equitable  mortgage,  where 
there  was  no  deed  to  be  registered.     Sumpter  v.  Cooper,  2  B.  &  Ad.  223. 

In  Harrington  v.  Price,  (3  B.  &  Ad.  170,)  the  vendor  of  an  estate  having, 
upon  a  groundless  pretence,  refused  to  deliver  up  the  deeds  ;  the  purchaser 


612  THE  LAW  OF  MORTGAGES.  [CH.  XXII. 

transferred  his  title,  and  the  assignee  brought  an  action  of  trover  for  the 
deeds,  and  recovered  judgment.  Subsequently  the  first  vendor  deposited  the 
deeds  with  the  defendants,  and  absconded.  The  purchaser  brought  trover 
against  the  defendants,  claiming  that  he  was  entitled  to  them  as  owner  of 
the  estate,  though,  after  the  conveyance  to  him,  they  were  pawned  to  a  third 
person  without  notice.  Held,  although  a  second  mortgagee,  obtaining  the 
deeds  without  notice,  might  retain  them  against  the  first ;  the  same  rule  did 
not  apply  to  a  prior  purchaser,  because  a  mortgagor  generally  retains  pos- 
session of  the  property,  and  therefore  his  retaining  the  deeds  is  likely  to 
mislead  third  persons  ;  and  that  the  plaintiff  was  entitled  to  recover.  (See 
Hooper  V.  llamsbottom,  6  Taun.  12  ;  Head  v.  Egerton,  3  P.  Wms.  280.) 

Mr.  Coote  says,  that  previously  to  the  establishment  of  this  doctrine, 
(meaning  the  doctrine  stated  in  the  text,)  it  was  held  that  mere  possession 
of  title-deeds  gave  no  interest  in  the  estate,  except  collaterally,  as  in  the 
instance  put  by  Lord  Eldon  (Ex  parte  Whitbread,  19  Ves.  211);  that  is, 
if  the  owner  of  the  land  could  not  part  with  the  estate  without  the  deeds,  he 
should  not  have  them  without  paying  the  debt  due  from  him  to  the  holder ; 
so  that  possession  of  the  deeds  gave  no  direct  interest  in  the  estate,  but  only 
a  power  of  embarrassing  the  property  in  a  sale.     Coote,  214. 


CH.  XXIII.]      EQUITABLE  MORTGAGES.  —  VENDOR'S   LIEN. 


(m 


CHAPTER   XXIII. 


EQUITABLE  MORTGAGES. 


LIEN   OF  A  VENDOR   FOR  THE  PURCHASE- 
MONEY. 


I.  General  nature  of  the  lion. 

3.  Kemarks  upon  the  policy  of  the 
rule  ;  whether  it  is  consistent  with  the 
general  doctrines  relating  to  real  prop- 
erty. 

7.  The  doctrine  is  well  settled  by  the 
weight  of  authorities. 

II.  Strictures  and  criticisms  of  the 
American  courts.  The  rule  is  not 
adopted  in  some  of  the  States. 

16.  But  it  is  adopted  in  most  of  them. 

17.  Abstract  of  decisions  upon  the 
subject. 

19.  General  nature  of  the  lien;  an 
equitable  right. 


30.  Against  what  parties  the  lien  may 
be  enforced.  Purchasers  ;  by  what  no- 
tice they  shall  be  affected. 

43.  Heirs. 

44.  Widow. 
47.  Creditors. 

56.  By  whom  the  lien  may  be  en- 
forced. 

59.  TT'cnVer  and  discharge  of  the  lien 
of  a  vendor  for  the  purchase-money,  by 
taking  security  therefor,  or  by  other 
acts  and  agreements. 

84.  Mode  of  enforcing  the  vendor's 
lien ;  bill,  decree,  &c. 


1.  Ix  addition,  and  somewhat  analogous,  to  the  form  of 
equitable  mortgage^  arising  from  a  deposit  of  title-deeds,  which 
was  considered  in  the  last  chapter,  courts  of  equity  recognize 
a  lien  upon  real  estate,  not  expressly  provided  for  by  con- 
tract, nor  growing  out  of  any  transaction  which  has  such 
lien  for  its  object,  but  implied  by  law,  (^ci)  for  the  purpose  of 


(rt)  An  express  agreement,  that  land  shall  be  chargeable  with,  and  secu- 
rity for,  the  payment  of  a  debt,  though  imperfect  as  a  legal  mortgage,  will 
be  regarded  as  a  mortgage  in  equity,  and  enforced  against  a  purchaser,  with 
notice.     Davis  v.  Clay,  2  Mis.  161  ;  Johnson  v.  Slawson,  1  Bai.  Ch.  463. 

A  written  agreement,  intended  to  give  a  lien  for  security  of  a  debt,  is  a 
good  equitable  mortgage,  though  not  lawfully  witnessed  for  a  conveyance  of 
real  estate.     Abbott  v.  Godfrey,  1  Mann.  (Mich.)  198. 

K  a  school  commissioner  has  sold  school  land,  the  statute  requiring  him 
to  take  a  mortgage  as  security  for  the  purchase-money,  which  he  omits  to 
do,  the  lien  is  not  lost,  and  may  be  enforced  against  subsequent  purchasers, 

VOL.  I.  52 


614  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

effecting  substantial  justice,  and  the  presumed  intention  of 
the  parties.  This  lien  may  properly  be  treated  as  amortgage, 
both  because  an  express  mortgage,  as  has  been  abundantly 
shown  in  the  foregoing  pages,  according  to  the  established 
modern  doctrine  on  the  subject,  creates  no  higher  interest 
than  a  lien ;  and  because  the  mode  of  enforcing  the  lien  in 
question,  and  the  general  rights  and  remedies  incident  to  it, 
are  substantially  similar  to  those  created  by  an  express 
mortgage.  (6) 

2.  It  has  been  already  remarked,  (supra,  pp.  1,  2,)  that  one 
of  the  most  common  occasions  for  executing  a  mortgage 
occurs,  where  a  conveyance  of  land  is  made,  and  a  mortgage 
of  the  same  land  at  the  same  time  taken  back  by  the  grantor, 
to  secure  the  whole  or  a  part  of  the  purchase-money.  The 
lien,  to  be  considered  in  the  present  chapter,  is  a  title'sub- 
stantially  corresponding  with  that  created  by  such  a  mort- 
gage, but  arising  by  implication  merely,  and  not  depending 
upon  any  deed  or  written  instrument  whatever.  The  doctrine 
of  equity  is,  that  a  vendor  of  real  estate,  either  merely  selling, 
or  both  selling  and  conveying  the  property,  without  receiving 
payment  of  the  purchase-money,  retains  a  lien  upon  it  as  se- 
curity for  such  purchase-money,  or  so  much  of  it  as  remains 
unpaid.! 

3.  The  mere  statement  of  this  rule,  in  its  general  terms, 
is  sufficient  to  show,  that  it  is  an  anomaly  in  the  law  of  real 
property ;  certainly  in  that  branch  of  the  law,  as  modified 
and  established  by  American  statutes  and  judicial  deeisions. 

1  See  Farrarv.  Winterton,  5  Beav.  1  ;  Burns  v.  Taylor,  23  Ala.  255. 

•with  notice,  if  proceedings  are  instituted  for  that  purpose  within  a  reason- 
aVjle  time.     School  Trustees  v.  Wright,  12  111.432. 

Where  a  vendor  had  only  an  agreement  for  a  title,  and  afterwards,  on 
oljtaiiiing  the  legal  title,  gave  back  a  mortgage  to  his  vendors  for  the  pur- 
chase-money ;  held,  the  mortgage  was  a  valid  claim  on  the  land.  Chew  v. 
Barnett,  1 1  S.  &  R.  389. 

(h)  See  Haley  v.  Bennett,  5  Port.  452  ;  Irwin  v.  Davidson,  Ired.  Ch.  311 ; 
Kelly  V.  Paine,  18  Ala.  371. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S    LIEN.  615 

We  have  had  repeated  occasion  to  suggest,  that  notoriety 
or  pjibliciti/  is  the  settled  and  prominent  requisition,  ap- 
plied to  titles  to  real  property  in  the  United  States.  It  is 
the  universal  policy  of  American  law,  to  divest  these  titles 
of  all  secrecy,  so  that  purchasers  or  creditors,  by  resorting  to 
a  public  and  general  repository  of  deeds,  may  be  able  to 
ascertain,  with  an  assurance  little  short  of  absolute  certainty, 
to  whom  any  particular  estate  belongs,  and  who  therefore 
has  power  himself  to  pass  a  title.  In  the  last  chapter  it  was 
shoAvn,  that  the  mortgage  by  deposit  of  title-deeds,  though  as 
fully  recognized  in  England  as  any  other  form  of  mortgage, 
has  been  repudiated  in  this  country  for  the  reason  above 
suggested ;  its  inconsistency  with  that  registry  system,  which 
now  constitutes  an  elementary  part  of  our  jurisprudence,  and 
is  undoubtedly  one  of  the  most  useful  innovations  upon  the 
common  law  of  real  property.  It  will  be  seen,  however, 
that  this  consideration,  though  as  forcible  in  the  present 
case  as  in  the  other,  and  though  its  force  has  often  been 
admitted  by  our  courts  ;  has  not  proved  sufficient  to  prevent 
the  general  adoption  of  the  English  rule. 

4.  Besides  the  objection  to  the  doctrine  in  question,  arising 
from  its  want  of  harmony  with  the  prevailing  policy  of 
American  law,  there  is  no  topic  in  the  law  of  mortgages,  in 
relation  to  which  the  decisions  are  more  confused  and 
variable.  As  will  be  hereafter  more  particularly  stated,  the 
origin  of  the  rule  is  referred  to  the  civil  law.  But  that  law 
adopted  the  same  rule  in  regard  to  both  real  and  personal 
property  ;  (c)  giving  the  vendor  of  each  a  lien  upon  the  thing 
sold,  until  payment  of  the  price  ;  or,  to  speak  more  accurately. 


(c)  It  lias  been  hold  that  a  vendor  of  grass,  (-^hich  may  be  regarded  as 
partaking  of  the  nature  of  realty,)  sold  on  credit,  with  a  license  to  cut  it, 
but  no  reservation  of  a  lien,  cannot  claim  such  lien  for  the  payment  of  the 
purchase-money.  Cutler  v.  Pope,  1  Shepl.  377.  But  it  is  held,  that  where 
personal  property  is  sold,  under  an  agreement  that  it  shall  be  mortgaged 
for  the  price,  the  purchase-money  will  be  a  lien  on  the  property,  though  no 
mortgage  is  executed.     Alexander  v.  Heriot,  1  Bailey,  Ch.  223. 


616  THE  LAW   OF   MORTGAGES.  [CH.  XXIII. 

making  payment  of  the  price  a  condition  precedent  to  any 
title  whatever  in  the  vendee,  (d)  There  would  seem  to  be 
no  good  reason  for  abandoning  this  principle  in  regard  to 
personal  estate,  which  has  unquestionably  been  done  by  the 
English  law,  except  in  allowing  the  vendor  a  lien  ivhile  he 
retains  possession ;  and  adhering  to  it  with  reference  to  real 
estate,  alike  where  the  vendor  or  the  vendee  is  in  possession, 
and  notwithstanding  the  latter  may  exhibit  in  his  own 
hands  and  upon  the  public  records  a  perfect  documentary 
title. 

5.  It  may  be  mentioned,  as  another  illustration  of  the  un- 
certainty attending  this  doctrine,  that  the  cases  constantly 
speak  of  it,  as  alike  applicable,  whether  the  vendor  has  ac- 
tually conveyed,  or  merely  contracted  to  convey,  the  legal 
title  ;  (e)  of  course  involving  the  conclusion,  that  the  nature 
of  his  title  is  the  same  in  both  instances.  And  yet  it  is  diffi- 
cult to  understand,  how  a  party  can  have  a  lien  upon  prop- 
erty, of  which  he  at  the  same  time  has  the  absolute  legal 
ownership  ;  or  how  the  same  term  can  be  accurately  em- 
ployed to  denote  such  ownership,  subject  to  a  mere  execu- 
tory agreement  for  conveyance,  and  the  very  shadowy  inter- 
est, "  neither  property  nor  a  right  of  action,  neither  jus  in  re 
nor  jus  ad  rem,'"  which  remains  in  the  vendor  after  an  actual 
transfer  to  the  vendee.  In  the  former  case,  the  lien  consists 
in  the  vendor's  right  to  withhold  a  deed  until  the  price  be 
paid ;  in  the  latter,  it  authorizes  the  same  or  similar  proceed- 
ings against  the  land,  treated  as  the  vendee's  property,  as  in 
case  of  an  express  mortgage ;  and  these  two  rights  have  little 
else  in  common  but  the  name  which  is  alme  applied  to 
them. 

6.  The  same  want  of  certainty  prevails,  in  relation  to  the 


(d)  "  Quod  vcndidi  non  aliter  Jit  accipientis,  (]uam  si  aut  pretium  nobis 
solutum  sit,"  &c.     Dig.  lib.  18,  tit.  1. 

(e)  See  Mims  v.  Macon,  &c.  3  Kelly,  341  ;  Gilkeson  v.  Snyder,  8  W.  & 
S.  200. 


CH.  XXin.]      EQUITABLE   MORTGAGES. ^TINDOr'S   LIEN.  617 

parties  by  and  against  whom  the  lien  may  be  enforced,  and 
to  the  acts  or  agreements  by  which  it  may  be  waived  or  dis- 
charged. And  upon  a  view  of  the  whole  subject,  it  may  be 
safely  said,  that  its  entire  disuse  or  abrogation  in  the  United 
States  would  greatly  contribute  to  the  security  of  titles  to 
real  property,  and  put  an  end  to  many  complicated  and  em- 
barrassing controversies,  by  substituting  clear,  written  words 
of  conveyance,  for  presumed  intention  and  vague  and  con- 
flicting equities. 

7.  Notwithstanding  the  obvious  objections  to  this  rule  of 
law,  which  have  been  above  stated,  it  is  still  undoubtedly 
well  settled  by  judicial  decisions.  Thus  it  is  said  by  the 
Court  in  North  Carolina :  '  "  That  this  is  the  doctrine  of  the 
English  Court  of  Chancery,  there  can  be  no  doubt.  It  is 
establishe'd  by  many  authorities  and  running  through  many 
years  of  the  judicial  history  of  that  country." 

8.  In  another  case,  with  more  particular  reference  to  the 
objection  against  the  doctrine,  arising  from  the  statute  of 
frauds,  (/)  it  is  said:  — "  It  is  not,  perhaps,  so  strong  a 
case  as  that  of  a  mortgage  implied  by  a  deposit  of  the  title- 
deeds  of  real  estate,  which  seems  dh-ectly  against  the  policy 
of  the  statute,  but  which  nevertheless  has  been  unhesitatingly 
sustained."  ^  (^)     {Infra,  sec.  10.) 

1  Per  Nash,  J.,  Womble  v.  Battle,        "^  Mims  v.  Macon,  &c.  3  Kelly,  341. 
3  Ired.  Eq.  183. 


(/)  Such  lien  is  said  to  fall  under  th.e}iea.d^co72structive  trusts,  to  which 
the  statute  of  frauds  does  not  apply.  It  is  saia  to  be  neither  Jus  in  re,  nor 
jus  ad  rem,  neither  property  nor  a  right  of  action,  but  a  charge.  1  Hill,  on 
R.  P.  475.  Skaggs  v.  Nelson,  25  Miss.  18.  It  cannot  be  created,  it  is  said, 
by  parol  agreement.  lb.  So,  if  in  an  action  on  a  note  alleged  to  have  been 
given  for  the  price  of  land,  the  plaintiff  prays  for  an  enforcement  of  his 
lien ;  the  sale  cannot  be  proved  by  parol  evidence.  Farmer  v.  Simpson, 
6  Tex.  303.     See  sec.  19. 

{g)  We  have  already  adverted  {supra,  s.  3,)  to  the  inconsistency  of  the 
American  courts,  in  recognizing  the  implied  lien  of  a  vendor,  and  at  the 
same  time  rejecting  the  equally  well  settled  English  doctrine  of  a  mortgage 
.  by  deposit  of  deeds. 

52* 


618  THE   LAW    OF    MORTGAGES.  [CH.    XXIII. 

9.  In  Vermont,  (h)  the  only  State  in  New  England  where 
the  rule  has  been  expressly  sanctioned,  the  Court  remark  :  — 
"  It  is  a  highly  equitable  doctrine,  and  eminently  consistent 
with  the  most  perfect  notions  of  moral  justice.  It  has  ex- 
isted in  the  English  equity  courts  for  centuries.  It  has 
been  adopted  in  most  of  the  American  States,  whose  equity 
systems  may  be  regarded  as  at  all  settled,  and  in  the  national 
courts."  ' 

10.  Judge  Story  says  :  ^  —  "It  has  often  been  objected, 
that  the  creation  of  such  a  trust  by  courts  of  equity  is  in 
contravention  of  the  policy  of  the  statute  of  frauds.  ( Snpra, 
sec.  8.)  But  whatever  may  be  the  original  force  of  such  an 
objection,  the  doctrine  is  now  too  firmly  established  to  be 
shaken  by  any  mere  theoretical  doubts.  Courts  of  equity 
have  proceeded  upon  the  ground,  that  the  trust,*  (z)  being 
raised  by  implication,  is  not  within  the  purview  of  that 
statute,  but  is  excepted  from  it.  It  is  not,  perhaps,  so  strong 
a  case  as  that  of  a  mortgage  implied  by  a  deposit  of  the 
title-deeds  of  real  estate,  which  seems  directly  against  the 
policy  of  the  statute,  but  which  nevertheless  has  been  unhes- 
itatingly sustained."  The  same  author  further  remarks  :  ^  — 
"  The  true  origin  of  the  doctrine  may  with  high  probability 
be  ascribed  to  the  Roman  law,  from  which  it  was  imported 
into  the  equity  jurisprudence  of  England,  (j)  By  the  Roman 
law,  the  vendor  of  property  sold  had  a  privilege,  or  right  of 
priority  of  payment,  in  the  nature  of  a  lien  on  the  property, 
for  the  price  for  which  it  was  sold,  not  only  against  the 

1  Per  Rcdficld,  J.,  Manly  v.  Slason,  ^  2  Story's  Eq.  §  1218. 

21  Verm.  271.  .8  lb.  1221. 


(h)  By  a  late  statute  (1851,  42,)  the  lion  is  abolished. 

(i)  Sec  Minis  v.  Macon,  &c.  3  Kelly,  341. 

(_/)  Ace.  Glower  v.  llawlings,  9  Sm.  &  M.  122;  Atwoocl  v.  Vincent, 
17  Conn.  583.  One  ground  of  the  rule  is,  that  payment  is  jxirt  of  the  con- 
tract, lb.  It  is  also  rested  upon  the  ground  of  (jood  conscience.  Minis  v. 
Macon,  &c.  3  Kelly,  342. 


CH.  XXni.]      EQUITABLE  MORTGAGES.  —  VEJTOOR'S   LIEX.  619 

vendee  and  his  representatives,  but  against  his  creditors  and 
also  against  subsequent  purchasers  from  him.  For  it  was  a 
rule  of  that  law,  that  although  the  sale  passed  the  title  and 
dominion  in  the  thing  sold,  yet  it  also  implied  a  condition 
that  the  vendee  should  not  be  master  of  the  thing  so  sold, 
unless  he  had  paid  the  price,  or  had  otherwise  satisfied  the 
vendor  in  respect  thereof,  or  a  personal  credit  had  been  given 
to  him  without  satisfaction." 

11.  As  might  be  supposed,  however,  from  the  anomalous 
character  of  this  doctrine,  it  has  been  made  the  subject  of 
some  severe  strictures  in  the  American  courts. 

12.  In  Bayley  v.  Greenleaf,^  (see  sec.  47,)  Marshall,  C.  J., 
remarks  substantially  as  follows.  Whether  the  lien  of  a 
vendor  be  established  as  a  natural  equity,  or  from  analogy  to 
the  principle,  that  a  bargainor  holds  in  trust  for  the  bargainee 
till  the  price  is  paid ;  it  is  still  a  secret,  invisible  trust.  The 
vendee  appears  to  hold,  divested  of  any  trust,  and  gains 
credit,  upon  the  confidence  that  he  is  the  owner  in  equity  as 
well  as  at  law.  A  vendor  ought  to  take  a  mortgage,  for  the 
purpose  of  general  notice ;  otherwise,  he  is  in  some  degree 
accessory  to  a  fraud.  It  would  seem  inconsistent  with  the 
principles  of  equity  and  with  the  general  spirit  of  our  laws, 
that  such  a  lien  should  be  set  up  in  a  court  of  chancery,  to 
the  exclusion  of  bond  fide  creditors.  In  the  United  States, 
the  claims  of  creditors  stand  on  high  ground.  There  is  not 
perhaps  a  State  in  the  Union,  the  laws  of  which  fail  to 
make  all  conveyances  not  recorded,  and  all  secret  trusts  void, 
as  to  creditors,  as  well  as  subsequent  purchasers  without 
notice.  To  support  the  secret  lien  of  a  vendor  against  a 
creditor,  who  is  a  mortgagee,  would  be  to  counteract  the 
spirit  of  these  laws.  Judge  Marshall  examines  the  conflict- 
ing English  decisions  upon  the  subject,  and  also  the  remarks 
of  Mr.  Sugden,  apparently  contradictory  to  the  opinion  of 
the  Court  in  this  case ;  and  draws  a  distinction  between  a 
conveyance  made  by  the  debtor  himself,  to  secure  one  or 

1  7  Wheat.  46.     See  Gill  v.  M'Attee,  2  Md.  Ch.  255 ;  Ott  v.  King,  8  Gratt.  224. 


620  THE   LAW   OF  MORTGAGES.  [CH.  XXIII. 

more  creditors,  or  creditors  generally,  and  an  assignment 
under  an  insolvent  or  banlaupt  law,  which  the  law  does  not 
regard  as  made  for  valuable  consideration,  but  as  merely 
substituting  the  assignee  in  place  of  the  debtor,  (k) 

13.  In  Maine,  the  Court  remark  as  follows:  —  "Such  a 
doctrine  may  be  unobjectionable  in  a  country  where  the 
lands  have  been  cultivated  for  a  great  length  of  time,  and 
where  the  change  of  property  is  comparatively  infrequent. 
But  ill  this  State,  where  so  great  a  portion  of  them  are  un- 
cultivated, and  where  titles  are  subject  to  such  constant 
change,  the  doctrine  would  be  so  un suited  to  the  actual  con- 
dition of  things,  as  to  act  unfavorably,  if  not  oppressively 
upon  our  citizens.  The  policy  of  our  law  is  opposed  to  that 
of  Great  Britain  in  this,  that  it  encourages  the  distribution 
of  estates  and  property  among  all  the  people  ;  and  any  rule 
of  law  suited  to  restrain  it  cannot  be  received  as  a  part  of 
our  law  merely  because  it  has  been  long  the  established  law 
there.  In  this  State,  the  public  registry  is  designed  to  ex- 
hibit to  all  persons  the  state  of  the  title,  while  in  that  coun- 
try such  means  of  information  have  not  existed  except  to  a 
limited  extent.  To  admit  such  a  lien,  would  tend  greatly  to 
diminish  the  confidence  held  out  by  the  law,  as  fitting  to  be 
reposed  in  such  records."  ^ 

14.  In  North  Carolina,  in  a  case  overruling  some  prior 
decisions,  which  had  recognized  the  rule  as  part  of  the  law 
of  that  State,  the  Court  remark  :  —  "  Every  rule  adopted  by 
the  Courts,  whereby  the  titles  to  real  property  shall  be  affected, 
should  be  plain  and  perspicuous.  A  system,  then,  complex 
in  its  nature,  and  leading  to  uncertainty  and  confusion, 
ought  not  to  be  adopted  unless  imperiously  demanded, 
either  by  natural  justice  or  necessity."  ^ 

1  Per  Sheplcy,    C.   J.,    Philbrook   v.     3  Ired.  Eq.  186;  ace.  Cameron  d.  Ma- 
Delano,  29  Maine,  414,  415.  sou,  7  Ired.  Eq.  180. 
^  Per  Nash,   J.,   Womble  v.  Battle, 


(k)  Ace.  Marine,  &c.  o.  Early,  Charl.  Jl.  M.  279  ;  Shirley  v.  Sugar,  &c. 
2  Edw.  Ch.  505 ;  Van  Dorcn  v.  Toad,  2  Green,  Ch.  397. 


CH.  XXIII.]     EQUITABLE   MORTGAGES. — VENDOR'S*  LIEN.  621 

15.  In  Pennsylvania,  in  the  case  of  StoufFer  v.  Coleman,' 
a  writing  was  executed  between  two  parties,  called  an  article 
of  f^reemenl^  with  a  covenant  for  a  subsequent  conveyance 
by  a  good  and  sufficient  deed,  but  also  conveying  by  words 
of  actual  grant.  A  bond  was  given  for  the  price  of  the  land. 
It  was  stated  by  the  Court,  that  these  facts  presented  two 
questions  for  their  consideration  ;  first,  whether  the  party  did 
seU  and  convey,  or  only  agree  to  do  it ;  second,  whether  the 
lien  was  not  waived  by  taking  security  for  the  price.  In  the 
later  case  of  KaufFelt  v.  Bower,^  the  same  Court  remarked, 
that  in  the  former  case  the  doctrine  of  equitable  lien  could 
not  apply,  because  the  vendor  still  retained  the  legal  title. 
They  proceed  to  disavow  the  English  doctrine  upon  the  sub- 
ject, as  a  rule  of  law  in  Pennsylvania,  upon  the  ground  that 
it  was  first  adopted  three  years  after  the  charter  to  Penn  ; 
that  it  was  impracticable,  for  want  of  full  equity  powers  in 
the  Court,  and  contrary  to  the  general  understanding  and 
practice,  and  to  the  universal  policy  of  the  law  concerning 
the  registration  of  deeds,  the  liens  of  mechanics,  judgment 
creditors,  creditors  of  deceased  persons,  &c.,  and  would  in- 
volve the  greatest  confusion  and  uncertainty  of  titles.  The 
Court  further  remark,  that  the  doctrine  had  been  recognized 
in  only  two  cases  in  that  State  ;  Stouffier  v.  Coleman,  and 
Irvine  v.  Campbell,  which  was  merely  a  purchase  of  the  equi- 
table title,  the  instrument  being  in  form  executory,  and  con- 
taining a  covenant  for  further  assurance,  [l) 

1  1  Yeates,  393.  2  7  g.  &.  r.  64. 


(J)  Agreement  in  writing  for  the  sale  of  land,  a  certain  sum  to  be  paid  on 
the  vendor's  death,  and  certain  duties  to  be  performed  by  the  vendee  dur- 
ing the  vendor's  hfe.  The  vendor  made  a  deed  of  the  land,  "  subject  to  the 
reserves  mentioned  in  the  article,  which  reserves  are  to  continue  during  the 
grantor's  life."  Held,  the  agreement  and  deed,  construed  together,  created 
no  lien  for  the  purchase-money.     Zentmyer  v.  Mittower,  5  Barr,  403. 

In  the  same  State  (Pennsylvania,)  it  is  held,  that  an  agreement  between 
grantor  and  grantee,  executed  and  recorded  the  same  day  with  the  deed, 


622  •        THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

16.  But  notwithstanding  these  dissenting  views,  the  lien 
of  a  vendor  for  the  purchase-money  must  undoubtedly  be 
considered  as  a  settled  principle  of  American  law,  so  far  as 
this  depends  upon  the  weight  of  authority.  It  appears  to 
have  been  sanctioned  in  the  States  of  New  York,  New  Jer- 
sey, Maryland,  Virginia,  [m)  Tennessee,  Texas,  Mississippi, 
Georgia,  Alabama,  Missouri,  Michigan,  Illinois,  Indiana, 
Ohio,  Kentucky,  and  Vermont ;  but  rejected  in  Massachu- 
setts, Maine,  Pennsylvania,  (w)  and  North  Carolina,  (o) 
Whether  it  is  adopted  or  rejected  in  South  Carolina  [p)  and 
Delaware,  seems  somewhat  doubtful.'  It  is  said  never  to 
have  been  adopted  in  its  extent  in  Connecticut,  and  to  exist 

1  2  Siigd.  (Amer.)  324,  n.;  Manly  v.  v.  Ives,  1  Sm.  &  M.  197  ;  May  v.  Lewis, 

Slason,  21  Venn.  271;  Weed  v.  Beebe,  22  Ala.  646;  Harring.  _Ch.  225;  Biuld 

ib.  49.5  ;  Moore  v.  Holcombe,  3  Leigh,  v.  Bush,  1  Harring.  69';  Brinkerholf  v. 

597  ;  Conover  v.  Warren,  1  Gilm.  498;  Vansciner,  3  Green,  Ch.  251. 
Howard  v.  Davis,  6  Tex.  1 74 ;   Stewart 


that  the  purchase-money  should  be  a  lien  upon  the  land ;  does  not  interfere 
with  the  title  of  subsequent  judgment  creditors  of  the  grantee.  McLanahan 
V.  Reeside,  9  Watts,  508. 

(m)  It  is  now  provided  by  statute  (Code,  510,)  that  the  lien  shall  not  exist, 
unless  expressly  reserved. 

(n)   See  Hepburn  v.  Snyder,  3  Barr,  72. 

(o)  The  following  is  a  summary  view  of  the  course  of  decisions  in  this 
State  :  — Whether  a  vendor  has  a  lien,  as  against  volunteers  and  purchasers 
with  notice,  qucEve.  Johnson  v.  Cawthorn,  1  Dev.  &  Bat.  Ch.  32.  But  such 
lien  does  not  exist  after  a  sale  on  execution,  or  a  sale  under  a  decree  of 
Court,  under  the  act  of  1789,  for  debts  of  the  vendee.  lb.  Harper  v.  Wil- 
liams, 1  Dev.  &  B.  Ch.  379.  Nor  as  against  a  bond  fide  purchaser  from  the 
vendee,  without  notice,  if  it  exists  in  any  case.  Gahee  v.  Sneed,  1  Dev. 
&  Bat.  Ch.  333.  But  where  land  was  sold,  to  be  conveyed  upon  payment  of 
the  price,  and,  after  the  death  of  the  vendor,  the  purchaser  filed  a  bill  against 
his  heirs  for  a  conveyance,  which  being  taken  pro  confe.'iso,  the  Court  de- 
creed a  conveyance,  without  noticing  the  non-payment  of  the  purchase- 
money  ;  held,  such  decree  did  not  destroy  the  vendor's  lien  for  the  price. 
Winborn  v.  Gorrell,  3  Ired.  Ch.  117.  The  vendor  of  land  has  not  an  equi- 
table lien  thereon  for  the  price.  AVamble  v.  Battle,  3  Ired.  Ch.  182;  Hen- 
derson V.  Burton,  lb.  259.  v. 

(/))  See  Wragg  i'.  Comptroller,  &c.,  2  Desaus.  509. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. '.—  vendor's   LIEN.  623 

only  where  the  vendor's  object  is  money,  and  he  has  no  other 
security.^  (q)  In  a  later  case,  in  the  same  State,^  Church,  J., 
says,  "  in  this  State,  we  have  not  yet  had  occasion  to  resort 
to  it." 

17.  It  is  mmecessary,  and  would  be  useless,  to  cite  all  the 
numerous  cases,  which  recognize  or  establish  the  doctrine  in 
question.  In  Fish  v.  Howland,'^  Chancellor  Walworth  gives 
the  following  valuable  abstract  of  the  most  important  among 
them  : 

18.  In  Chapman  v.  Tanner,*  the  earliest  case,  which  occur- 
red in  1684,  Lord  Guilford  held,  that  where  the  purchaser 
had  become  bankrupt,  the  vendor  had  a  lien  for  the  price  of 
the  land,  upon  a  principle  of  natural  equity,  and  did  not 
stand  on  the  footing  of  a  general  creditor,  (r)  In  Bond  v. 
Kent,'^  a  mortgage  was  given  for  part  of  the  price,  and  a  note 
for  the  rest.  Held,  there  was  no  lien  for  the  amount  of  the 
note.  In  Coppin  v.  Coppin,^  Lord  King  held  there  was  a 
lien,  though  a  receipt  for  the  price  was  indorsed  upon  the 
deed.  In  this  case,  the  question  of  lien  was  a  subordinate 
and  incidental  one.  In  Pollexfen  v.  Moore,^  the  conveyances 
being  retained.  Lord  Hardwicke  held  the  land  chargeable 
with  a  lien  in  the  hands  of  the  heir.     In  Burgess  v.  Wheat,^ 

1  Meigs  V.  Dimock,  6  Conn.  464.  ^  i  p^jge,  24-30.  ^  2  P.  Wms.  291. 

2  Atwood  r.  Vincent,  17  Conn.   583.  *  1  Vern.  267.  "  3  Atk.  272. 
See  Watson  v.  Wells,  5,  468;  Dean  v.  ^  2  Ibid.  281.  ^  1  Ed.  211. 
Dean,  6,  285. 


(^)  The  plaintiff  sold  and  conveyed  land  to  Watson,  taking  notes  of  hand 
and  a  mortgage  for  the  price.  One  of  the  witnesses  to  the  mortgage  acci- 
dentally omitted  to  sign  his  name,  but  it  was  dnly  recorded.  The  defendants, 
being  partners  and  creditors  of  Watson,  afterwards  took  from  him  a  deed  of 
the  land,  one  of  them  having  actual  notice  of  the  facts  of  the  case.  The 
plaintiff"  brings  a  bill  in  equity,  setting  forth  this  defect  in  the  mortgage,  and 
praying  for  confirmation  of  his  title.  It  was  held,  in  part  upon  the  ground 
of  a  vendor's  equitable  lien,  that  the  plaintiff  was  entitled  to  a  decree. 
Watson  V.  Wells,  5  Conn.  4G8. 

(r)  In  this  case,  however,  it  is  said,  (Fawell  v.  Heells,  Amb.  726  ;  Tar- 
diffe  V.  Schrugan,  1  Bro.  424,  n.  b,)  that  there  was  a  special  agreement  for 
the  vendor's  retaininjr  the  title-deeds. 


624  THE   LA^   OF   MOETGAGES.  [CH.  XXIII. 

the  general  principle  is  sanctioned.  In  TardifFe  v.  Schrugan,^ 
a  conveyance  was  made  to  two  daughters  of  the  grantor,  in 
consideration  of  an  annuity,  for  which  they  gave  him  their 
joint  bond.  One  of  them  having  married  and  died,  her  hus- 
band, who  had  a  life-estate  in  a  moiety  of  the  land,  refused 
to  pay  any  part  of  the  annuity.  The  other  sister  and  her 
husband  then  filed  a  bill  in  equity  against  them.  Held,  by 
Lord  Camden,  that  a  moiety  of  the  annuity  was  a  lien  upon 
the  land  in  the  defendant's  hands  ;  and  decreed,  that  he  pay 
a  moiety  of  the  arrears,  and  keep  down  a  moiety  of  the  future 
payments.  In  Fawell  v.  Heelis,^  {^s)  Lord  Bathurst  held,  that 
the  lien  was  discharged,  by  taking  the  purchaser's  bond,  pay- 
able at  a  future  time.  In  Blackburn  v.  Gregson,^  the  same 
point  Avas  raised,  but  not  decided.  In  Austen  v.  Halsey,* 
which  was  a  claim  of  lien  by  a  legatee.  Lord  Eldon  ruled 
that  the  vendor  has  such  lien,  unless  the  contract  clearly 
shows  a  contrary  intention.  In  Nairn  v.  Prowse,^  Sir  Wil- 
liam Grant  recognized  the  general  rule,  but  remarked,  that  if 
the  vendor  does  not  trust  to  the  lien,  but  carves  out  a  secu- 
rity for  himself,  it  is  doubtful  whether  the  lien  is  or  is  not 
waived.  In  Elliot  v.  Edwards,^  the  holder  of  a  lease  assigned 
it,  with  a  proviso,  that  the  assignee  should  not  transfer,  &c.,  till 
payment  of  the  price,  and  took  security  from  a  third  person. 
Held,  the  vendor  still  had  a  lien  for  the  price.  In  Hughes  v. 
Kearney,''  the  purchaser  gave  a  note  for  the  price,  which  was 
delivered  to  a  third  person  as  trustee,  tiU  the  incumbrances 
could  be  ascertained  and  paid  off  therefrom,  the  balance  to 
be  paid  to  the  vendor.  Held,  the  amount  of  the  note  was  a 
lien,  as  against  an  heir  of  the  purchaser.  In  Mackreth  v. 
Symmons,^  a  lien  was  held  to  exist,  though  a  bond  had  been 
given  for  the  price  ;  and  Lord  Eldon  suggested,  that  taking 
a  mortgage  upon  another  estate,  as  security,  might  not  be  a 

1  Cited  1  Bio.  423.  *  6  Vcs.  47.5.  ''  1  Sch.  &  Lef.  132. 

'^  Ami).  724.  ^  Ibid.  7.'j2.  «  15  Ves.  329. 

8  1  Bro.420;  1  Cox,  90.  «  3  Bos.  &  P.  181. 


(.v)  This  case  is  said  to  have  been  often  overruled. 


CH.  XXIII.]     EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  625 

waiver.  In  Grant  v.  Mills,i  the  purchaser  had  drawn  bills 
upon  himself  and  his  partner,  which  were  accepted,  payable 
on  time,  and  delivered  them  to  the  vendor.  Held,  such  bills 
were  to  be  regarded  as  a  mode  of  payment,  not  as  security, 
and  the  lien  still  continued.  In  Ex  parte  Peake,^  it  was  held 
that  a  bill,  and  in  Ex  parte  Loaring,^  that  a  negotiable  note, 
on  time,  which  w^as  discounted  and  afterwards  dishonored, 
was  no  waiver.  So  in  Saunders  v.  Leslie,^  in  regard  to  a 
note  or  bond,  payable  on  time.  But  in  Winter  v.  Lord  An- 
son,5  where  the  purchaser  gave  his  bond,  payable  at  the  death 
of  the  vendor,  with  interest  annually,  and  a  receipt  for  the 
money  was  indorsed  upon  the  deed  ;  held,  there  was  no  lien, 
the  vendor  evidently  intending  to  part  with  the  estate  imme- 
diately, and  to  wait  for  payment  of  the  price. 

19.  With  regard  to  the  general  nature  of  the  lien  in  ques- 
tion, as  has  been  already  remarked,  it  does  not  depend  on 
possession,  and  exists  alike  in  the  cases  of  an  actual  sale  and 
a  mere  executory  contract.  So  in  case  of  an  exchange  of 
lands.  6  (^)  Nor  does  it  depend  on  any  express  assent  or 
agreement  of  parties,  though  sometimes  said  to  rest  upon 
this  foundation.  It  is  incident  to  the  contract.^  The  lien  is 
presumed  to  exist  primd  facie,  but  may  be  negatived  by 
special  circumstances,  (u)     Thus  it  is  said  not  to  exist,  where 

1  2  Ves.  &  B.  30G.  ^  1  Sim.  &  St.  434. 

2  1  Mad.  346.  ^  Burns  v.  Taylor,  23  Ala.  255. 

8  2  Rose,  (Bankr.)  79.  "  Brinkerlioff  v.  Vausciven,  3  Green. 

*2Bail&B.  514.  Ch.  251. 


(t)  Upon  an  exchange  of  farms  between  A.  and  B.,  A.  covenanted  to 
discharge  a  mortgage  upon  the  farm  given  in  exchange  by  him,  and  after- 
wards loaned  the  money  of  a  third  person,  to  discharge  the  mortgage,  under 
an  agreement  afterwards  performed,  that  the  mortgage  should  be  assigned  to 
the  lender  as  security.  Held,  the  assignee  was  entitled  to  a  preference,  for 
the  amount  advanced  by  him,  over  a  person  to  whom  -B.  had  subsequently 
mortgaged  the  land,  to  secure  a  preexisting  debt.  White  v.  Knapp,  8  Paige, 
173. 

(ii)  On  the  other  hand,  it  is  said,  there  must  be  clear  proof  oi  the  intention 
of  the  parties,  and  of  the  sum  due.     Williams  v.  Stratton,  10  Sm.  &  M.  418. 

VOL.  I.  53 


626  THE  LAAV   OF   MORTGAGES.  [CH.  XXIII. 

the  object  of  tFie  sale  was  not  money,  but  some  collateral 
benefit.'  A  special  contract  for  payment  of  the  purchase- 
money  must  be  explicit,  to  defeat  the  lien ;  and  though  the 
contract  is  stated  in  the  conveyance,  evidence  may  be  given 
of  the  true  bargain,  and  a  subsequent  purchaser  is  bound  to 
inquire  whether  it  was  intended  to  waive  the  lien.^ 

20.  Judge  Story  says :  — "  The  lien  of  a  vendor  for  the 
purchase-money  is  not  of  so  high  and  stringent  a  nature  as 
that  of  a  judgment  creditor,  for  the  latter  binds  the  land 
according  to  the  course  of  the  common  law,  whereas  the 
former  is  the  mere  creature  of  a  court  of  equity,  which  it 
moulds  and  fashions  according  to  its  own  purposes.  It  is,  in 
short,  a  right  which  has  no  existence,  until  it  is  established 
by  the  decree  of  a  Court  in  the  particular  case ;  and  is  then 
made  subservient  to  all  the  other  equities  between  the  par- 
ties, and  enforced  in  its  own  peculiar  manner,  and  upon  its 
own  peculiar  principles.  It  is  not,  therefore,  an  equitable 
estate  in  the  land  itself,  although  that  appellation  is  loosely 
applied  to  it."  ^  It  gives  no  claim  to  the  profits  of  the  land ;  ^ 
nor  to  the  back-rents,  when  enforced.^  But  the  vendor  may 
claim  rents  paid  to  a  receiver,  pending  the  bill.'^  It  has  been 
held  an  insurable  interest." 

21.  This  lien,  like  most  other  equitable  rights  or  claims, 
exists  only  in  a  court  of  equity,  (y)  It  is  said,  "  It  is  a  relief 
afforded  only  there  on  the  ordinary  ground  that  the  claimant 
is  remediless  in  a  court  of  law.  If  the  vendor  can,  by  any 
proceeding  at  law,  recover  the  amount  due  him,  chancery 
never  interferes  to  enable  him  to.  assert  his  equitable  lien. 

1  1  Hill.  E.  P.  474;  Sears  v.  Smith,  '^  Oilman  v.  Brown,  1  Mas.  191,  221. 

2  Mich.  24.3  ;  Tiennan  v.  Beam,  2  Ilam.  ■*  Little  v.  Brown,  2  Leigh,  353.     But 

383;  Van  Dorcn  v.  Todd,  2  Green,  Cli.  see  Irwin  v.  ])avi(lson,  Ircd.  Ch.  311. 

397.  ■  '"  INIedlev  v.  Davis,  5  Humph.  3S7. 

■^  Frail  v.  Ellis,  7  En-.  Law  &  Eq.  «  Ibid. 

457  ;  see  ^  8,  n.                 ^  ''  Tyler  v.  iEtna,  &c.,  16  Wend.  385. 


(d)  At  law,  the  clause  acknowledging  receipt  of"  the  purchase-money  is 
held  conclusive,  except  in  case  of  fraud.     Rowntrec  v.  Jacob,  2  Taunt,  141. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  YEXDOR's    LIEN.  627 

His  remedy  at  law  must  be  first  exhausted,  or  it  must  be 
shown  that  none  exists  there.  When,  therefore,  a  vendor 
goes  into  equity,  seeking  to  enforce  such  a  lien,  he  must 
show  that  he  has  no  redi'ess  at  law."  ^  Hence  it  was  held 
insufficient  to  allege,  without  proving,  a  seizure  on  execu- 
tion of  other  property;  and  necessary  to  show,  that  the 
debtor  had  no  other  property.^  So  it  is  held,  that  a  vendor 
can  enforce  his  lien  only  in  case  of  a  deficiency  of  personal 
estate  of  his  debtor ;  and  a  bill  to  enforce  such  lien,  it  not 
appearing  that  the  debt  cannot  be  made  at  law,  will  be  dis- 
missed.^ But  if  the  vendee  lives  out  of  the  State,  it  is  not 
necessary  first  to  bring  a  suit  at  law.*  So  it  has  been  held 
that  a  vendor,  without  proceeding  at  law,  may  enforce  his 
equitable  lien.^  So,  where  the  bond  for  a  title  has  been 
assigned,  he  is  not  bound  first  to  proceed  against  the  vendee 
at  law  for  the  price  ;  and,  though  he  might  maintain  ejectment 
for  the  land,  that  remedy  is  not  complete,  as  a  recovery 
would  not  affect  the'  contract  of  sale,  but  leave  it  in  full 
force;  and  he  could  retain  possession,  only  until  the  rents 
and  profits  had  discharged  his  lien,  when  chancery  would 
compel  a  reconveyance ;  and  a  recovery  even  might  be  pre- 
vented by  a  bill  to  redeem.^ 

21  a.  A  person  directed  his  solicitors  to  loan  certain  money 
for  him  on  mortgage,  after  examining  the  title.  After  such 
examination,  the  plaintiff",  one  of  them,  advanced  part  of  the 
money,  and  received  the  mortgage,  but  the  defendant,  the 
other,  refused  to  complete  the  loan  or  advance  the  money 
to  the  mortgagor.  The  plaintiff  brings  a  bill  in  equity  to 
compel  an  assignment  of  the  mortgage  to  him.  Held,  the 
plaintiff  was  not  bound  to  sue  at  law  for  his  advances ;  that 
he  alone  had  a  lien  on  the  mortgage,  and  the  defendant, 
holding  the  legal  title  in  trust  for  him,  was  bound  to  assign 

1  Per  Dorse V,  J.,  Pratt  v.  Van  Wvck,  *  Green  r.  Fowler,  11  Gill  &  J.  103. 

6  Gill  &  J.  498;  ace.  Evler  v.  Crabbs,  ^  Richardson  v.  Baker,"  J.  J.  Marsh, 

2  Md.  137.                         "  323. 

~  Ibid.  6  Ilalev  v.  Bennett,  5  Port.  452. 

'^  Bottorf  f.  Conner,  1  Blackf.  287. 


628  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

the  mortgage  to  him ;  and  that  the  case  was  one  of  equity 
jurisdiction.^ 

21  b.  A.  sells  land  to  B.,  obtains  judgment  on  the  notes 
given  him  for  the  purchase-money,  and  levies  on  the  lands 
in  the  possession  of  C,  a  purchaser  from  B. ;  and  C.  puts  in 
his  claim.  Held,  upon  trial  of  the  claim,  A.  cannot  set  up 
his  lien  as  vendor,  but  must  go  into  equity  to  establish  it, 
and  there  obtain  a  decree  that  the  land  be  sold.^ 

21  c.  The  assignee  of  a  bond,  given  for  the  price  of  part 
of  a  tract  of  land,  failing  to  obtain  payment  from  the  pur- 
chaser, has  no  lien  on  the  unpaid  purchase-money  in  the 
hands  of  the  grantee  of  the  other  part.^ 

22.  It  has  been  made  a  question,  whether  an  equitable 
lien  upon  land  can  be  maintained  in  favor  of  a  vendor,  who 
has  himself  never  had  a  legal  title,  his  vendee  taking  a  title 
directly  from  the  person  of  whom  the  vendor  purchased."* 
But  where  a  vendee  by  parol  sold  in  the  same  way,  and  the 
first  vendor  then  gave  a  deed  to  the  sdbond  vendee ;  held,  he 
had  a  lien  for  the  price.^  ' 

22  a.  A  vendor  conveying  to  purchasers  from  his  vendee, 
and  receiving  payment  from  them,  and  partial  payments  from 
his  vendee,  still  retains  his  lien  upon  the  remainder  of  the 
land,  for  the  balance  of  the  purchase-money.*^ 

22  b.  A.  having  title,  executed  a  bond  to  B.,  who,  having 
paid  therefor,  assigned  the  bond  to  C,  who  assigned  to  D., 
with  notice  of  the  non-payment  of  the  purchase-money  due 
from  C.  to  B.,  and  of  the  lien  of  the  latter  on  the  land. 
Held,  B.  had  a  lien.^ 

23.  It  seems,  in  Indiana,  a  valid  title  to  real  estate  may 
pass  by  a  mere  agreement,  accompanied  by  delivery  of  pos- 
session. But  in  such  case,  the  vendor  may  reserve  an  ex- 
press lien  for  the  price. 

24.  Agreement  under  seal,  to  sell  certain  land  and  a  steam- 

1  Mount  *  Suydiim,  4  Sandf.  Cli.  ''  Briscoe  v.  Bronangli,  1  Texas,  326. 
399.  ''Taylor  v.   Alloway,   3    Litt.    216; 

2  Colquitt  V.  Thomas,  8  Geo.  258.  Marsh  o.  Turner,  4  Mis.  2.'J3. 

"  Kagsdalc  v.  Ha<^fr,  9  Gratt.  409.  "  Ligon  v.  Alexander,  7  J.  J,  Marsh. 

*  Bayley  v.  Greenleaf,  7  Wheat.  50.       288. 


CH.  XXni.]       EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  629 

engine,  the  price  to  be  paid  in  three  years ;  the  purchaser  to 
have  immediate  possession  of  the  land,  and,  after  erecting  a 
mill-house,  to  have  the  engine  also,  which  was  to  remain  on 
the  land  till  payment  of  the  price,  when  a  title  should  be 
made.  The  vendee  took  possession  of  the  land,  built  the 
house,  and  put  the  engine  in  operation.  In  September, 
1821,  the  vendor  assigned  the  agreement,  and  in  July,  1824, 
the  assignee  re-assigned  it  to  another  person.  In  March, 
J823,  a  judgment  was  recovered  against  the  vendee,  and 
the  land  sold  on  execution.  The  second  assignee  brings  a 
bill  in  equity  against  the  execution  purchaser,  claiming  a 
lien  upon,  and  praying  a  sale  of  the  property,  to  satisfy  the 
claim  for  the  purchase-money.  Held,  the  doctrine  of  implied 
lien  was  not  applicable  to  this  case ;  that  the  agreement 
not  to  remove  the  engine  gave  an  express  lien  upon  it,  and 
the  express  covenant  that  the  vendor  should  retain  his  title 
till  payment,  created  a  lien  upon  the  land ;  that  the  lien  was 
assignable,  and  after  the  first  assignment,  the  vendor  re- 
tained only  a  bare  legal  title,  held  in  trust  for  the  purposes 
of  the  contract ;  and  that  the  defendant,  having  notice,  took 
the  estate,  subject  to  the  same  trust.  A  sale  was  decreed, 
with  the  proper  injunction  to  the  persons  in  possession,^  &c. 

25. '  The  doctrine  of  equitable  lien  does  not  apply  to  the 
assignment  of  a  mortgage  and  the  debt  secured  by  it.  The 
assignor  has  no  such  lien.'"^  But  the  assignor  of  a  bond  for  a 
title  has  the  same  lien  upon  the  land,  as  a  vendor  who  con- 
veys by  deed.2 

25  a.  Where  a  grantee,  in  consideration  of  the  conveyance, 
agrees  to  pay  debts  of  the  grantor,  and  support  him  and  his 
daughters ;  the  grantor  has  no  lien  to  secure  such  support.* 

25  b.  So,  where  A.  conveys  land  to  B.,  who,  in  considera- 
tion thereof,  covenants  with  A.  to  support  and  maintain  him 
and  his  lunatic  son  during  their  lives,  and  the  life  of  the  sur- 
vivor ;  such  covenant  creates  no  lien  in  favor  of  either  A.  or 

1  Lagow  v.  BadoUct,  1  Blackf.  416.  ^Wiseman  v.  Reid,  7  J.  J.   Marsh. 

2  Pratt  V.  Van  Wyck,  6  Gill  &  J.  498.       249. 

1  Brawley  v.  Catron,  8  Leigh,  522. 

53* 


630  THE   LAW   OF  MORTGAGES.  [CH.  XXIII. 

his  son ;  the  covenant  being  substituted  for  the  purchase- 
money,  or  a  mode  of  payment  of  the  price  of  the  land.^ 

25  c.  A  father  conveyed  to  his  son,  taking  back  a  bond  for 
the  support  of  himself  and  his  wife  for  life,  and  a  lease  of 
part  of  the  land  for  the  same  term.  Held,  the  grantor,  had 
no  lien. 2 

25  d.  A  deed  was  made  by  a  grandfather  to  his  grandson, 
in  consideration  of  love  and  affection  and  divers  other  good 
considerations,  and  with  the  purpose  of  disposing  of  thg 
grandfather's  property  after  his  death,  and  securing  a  legacy 
to  his  son ;  and  that  he  in  the  mean  time  might  retain  con- 
trol of  the  land  so  far  as  to  secure  a  support.  For  this 
purpose,  the  grandfather  took  back  a  life  lease  at  a  nominal 
rent,  and  a  bond  conditioned  (virtually)  that  whenever  the 
grandson  neglected  to  provide  a  support  for  him,  he  might 
resume  possession  or  claim  rent.  Held,  these  facts  showed, 
that  the  vendor  did  not  rely  upon  any  implied  lien,  but 
carved  out  his  own  security  for  his  support  by  a  direct  in- 
cumbrance upon  the  land,  and  that  this  express  lien  for  a 
part  of  the  consideration  negatived  the  right  of  any  implied 
lien  for  the  residue.^ 

26.  The  doctrine  applies  to  forced  sales,  by  operation  of 
law,  as  well  as  to  those  made  by  the  voluntary  act  of  the 
owner.  It  is  said  by  the  Court  in  Maryland,  "  No  reason 
occurs  to  us  why  it  should  not  apply  equally  to  a  forced 
sale  under  the  law,  as  to  a  voluntary  conveyance  by  the 
party  himself.  Indeed,  the  reason  is  stronger  for  maintain- 
ing it  in  the  former  case  than  in  the  latter.  In  voluntary 
sales,  the  vendor  might  perhaps  be  left  to  suffer  the  conse- 
quences of  his  own  want  of  caution  without  just  ground  of 
complaint.  But  this  cannot  be  affirmed,  where  he  is  de- 
prived of  his  property  against  his  will  by  the  strong  arm  of 
the  law,  under  the  stern  plea  of  State  necessity."  ^ 

27.  A  railroad  corporation  being  authorized  by  their  char- 
ter to  take  lands  for  the  use  of  the  road,  and  not  able  to 

1  McKillip  V.  McKillip,  8  Barb.  552.  *  Per  Lumpkin,  J.,  Mims  v.  Macon, 

2  Meigs  V.  Dimock,  6  Conn.  458.  &c.,  3  Kelly,  342. 

3  Fish  V.  Ilowland,  1  I'aige,  20. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S   LIEX.  631 

agree  with  the  plaintiff,  an  owner  of  land,  upon  the  price  to 
be  paid  him  ;  commissioners  awarded  the  amount,  which 
was  tendered  but  refused.  The  plaintiff  afterwards  sued 
the  contractors  of  the  road  for  trespass,  but,  failing  in  such 
suit,  received  a  certificate  of  deposit  for  the  amount  awarded 
by  the  commissioners ;  the  company,  however,  at  that  time 
being  utterly  and  notoriously  insolvent,  and  no  deposit  being 
actually  made.  The  road  was  afterwards  sold  under  a  de- 
cree in  chancery  to  the  defendants,  the  plaintiff  not  being 
party  to  the  proceedings,  and  his  agent  giving  notice  at  the 
time  and  place  of  sale,  that  the  plaintiff  would  claim  a  lien 
on  the  land  seized  for  the  price  awarded.  Upon  a  bill  to 
enforce  such  lien,  by  a  sale  of  land,  held,  the  plaintiff  was 
entitled  to  a  decree.^ 

27  a.  Commissioners  appointed  by  the  Court  to  sell  land, 
who  sell  the  same,  and  take  a  note  of  the  purchaser  for  a 
part  of  the  price,  cannot  file  a  bill  to  have  the  land  sold  to 
pay  such  note.^ 

28.  Where  a  conveyance  was  made,  which  was  intended 
as  a  trust,  but  on  the  face  of  it  appeared  to  be  a  purchase, 
and,  the  trust  not  being  in  writing,  the  party  lost  his  estate ; 
held,  he  still  had  a  lien  for  the  purchase-money  stated  in  the 
deed.3 

29.  Where  a  husband  completed  a  contract  of  purchase 
entered  into  by  the  w4fe  before  marriage  ;  held,  his  assignee 
had  a  lien  for  the  purchase-money,  and  interest,  and  lasting 
improvements,  from  the  time  of  completing  the  contract,  he 
accounting  for  the  rents  and  profits  from  that  time.'^ 

30.  The  question  has  often  arisen,  against  what  parties, 
claiming  an  interest  in  the  land,  the  lien  of  the  vendor  for 
the  purchase-money  may  be  enforced.  Such  lien  is  said  to 
be  valid  against  the  purchaser,  his  heirs,  &c.,  and  widow, 
and'  all  subsequent  purchasers  from  him  without  considera- 
tion or  with  notice  ;  so,  against  devisees,  purchasers  under  a 

1  Lumpkin,  J.,  Mima  v.  Macon,  &c.,         ^  Leman  v.  Whitley,  4  Euss.  423. 
3  Kellv,  342.  *  Xeesom  i'.  Clarkson,  4  Hare,  97. 

-  West  V.  Thornburgh,  6  B^fickf.  542. 


632  THE   LAW   OF  MORTGAGES.  [CH.  XXIII. 

sale  for  payment  of  debts  after  the  vendee's  death,^  subse- 
quent general  liens,  and,  it  seems,  an  execution  purchaser  ;2 
but  not  against  creditors  holding  under  a  bond  fide  convey- 
ance, or  subsequent  purchasers,  or  mortgagees,  without 
notice,  [lo)  Notice  is  sufficient  to  charge  a  purchaser,  if 
received  at  any  time  before  payment  of  the  price.^  So,  if 
it  is  such  notice  as  ought  to  put  him  upon  inquiry^  The 
lien  need  not  be  recorded,  and  is  not  within  the  registration 
acts.^     Notice  to  an  agent  is  sufficient,^  or  a  solicitor." 

31.  Knowledge  that  a  part  of  the  price  is  unpaid,  but  not 
how  much,  or  how  secured,  is  sufficient  to  put  a  purchaser 
on  inquiry.^ 

32.  If  the  purchaser  might  learn  the  existence  of  the  lien, 
by  examining  the  first  vendee's  title-deed ;  he  is  chargeable 
with  notice  of  such  lien.^ 

33.  If  the  vendor  remains  in  possession,  the  purchaser  is 
bound  to  inquire  into  the  title,'^  more  especially  if  the  vendor 
has  not  actually  conveyed,  even  though  he  had  notice  of  the 
proposed  transfer  and  failed  to  disclose  his  lien.^' 

34.  A  recital  that  the  consideration  remains  unpaid  has 
been  held  sufficient  notice.'^  But  the  vendor  cannot  claim  a 
larger  sum.^^ 

1  Wliite   V.   Casanave,    1   Har.  &  J.        *  Briscoe  v.  Bronaugh,  1  Texas,  326 ; 

106.  Frail  v.  Ellis,  17  Eng.  Law  &  Eq.  457. 

^  Kilpatrick   v.  Kili^atrick,  23  Miss.         '^  Ibid. 
124.  ^  Mounce  v.  Bvars,  11  Geo.  180. 

'^  4  Kent,  151-153;  2  Story,  461-471 ;         "^  Frail  v.  Ellis,"  17  Eng.  Law  &  Eq. 

Hallock  V.   Smith,  3  Barb.  267  ;  Esk-  457. 

ridge  v.  McClure,  2  Yerg.  84;  Magru-         »  Manly  v.  Slason,  21  Verm.  271. 
der  V.  Peter,  11  G.  &  Johns.  218  ;  Graves        ^  Honore  v.  Bakewell,  6  B.  Mon.  67. 
V.   McCall,    1    Call,    414;    Handley   v.       i'^  Hopkins  y.  Garrard,  7  lb.  312. 
Lyons,  5  Munf.  342;    Duval  v.  Bibb,       "  Dyer  u.  Morton,  4  Seam.  I4G. 
4' Hen.   &   M.    113;    Stewart   r.  Ives,       i- 7  B.  Mon.  ;  Thornton  w.  Knox,  6  lb. 

1  Sni.  &  M.  197;  Webb  v.  llobinson,  74;  Woodward  ?;.  Woodward,  7  lb.  116. 
14    Geo.    216;    Patterson   v.   Johnson,        "^Kilpatrick  v.   Kilpatrick,  23  Miss. 

7  Ham.  225  ;  McKnight  v.  Brady,  2  Mis.  124. 
110;    Patterson   v.  Johnston,   7   Ham. 
225. 


[w)  But  clianceiy  will  not  interfere  to  forbid  a  Stale  without  notice.     It 
can  only  sell  the  land,  to  satisfy  the  hen.     TayWr  v.  Hunter,  5  Humph.  569. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S   LIEN.  633 

35.  Where  the  vendee  conveys  to  secure  a  preexisting 
debt,  the  creditor  having  no  notice  of  the  lien  ;  it  is  not  lost.i 
A  bond  fide  purchaser  is  one  who,  at  the  time  of  his  purchase, 
advances  a  new  consideration,  surrenders  some  security,  or 
does  some  other  act  which,  if  his  purchase  were  set  aside, 
would  leave  him  in  a  worse  than  his  original  position. ^ 

36.  An  administrator's  deed  showed  that  the  land  had 
belonged  to  his  intestate,  and  was  sold  by  order  of  Court, 
and  that  part  of  the  price  had  not  become  due.  Held,  a 
purchaser  was  justly  chargeable,  with  notice  of  a  lien  for 

the  price.-^ 

36  a.  A   testator  devised   his  real  estates   to    A.  in   fee, 
charged  with  his  debts.     A.  in  1811,  contracted  with  C.  to 
sell  part  of  the  real  estate,  the  purchase-money  to  be  paid 
two  months  after.     C.  was  immediately  let  into  possession. 
The  purchase-money  was  not  paid.     In  January,  1812,  A. 
was  declared  a  bankrupt.     In  October,  in  the  same  year,  C. 
contracted  to  sell  part  of  the  same  real  estate  to  E.,  who  was 
let  into  possession,  but  his  purchase-money  was  not  paid. 
C.  made  his  will  in  1817,  by  which  he  devised  his  real  and 
personal  estate  to  trustees  upon  trust  to  pay  his  debts,  and 
then  ppon  trust  for  his   children,  and  died  in  1827.     The 
trustees  refused  to  act,  and  the  widow  of  C.  and  her  children 
filed  a  bill  for  the  appointment  of  trustees,  and  in  that  suit, 
F.  and  G.  were  appointed  new  trustees.     In  1834,  the  at- 
torney for  F.  and  G.  gave  notice  to  the  assignees  of  A.,  that 
the  purchase-money  for  the  property  comprised  in  the  con- 
tract of  1811,  and  interest  or  rent  in  respect  of  the  land,  were 
ready  to  be  paid,  for  the  express  purpose  of  completing  the 
agreement.     In  1844,  the  money  not  having  been  paid,  the 
assignees  filed  a  bill  against  F.  and  G.,  the  trustees  of  the 
will   of   C,  and  against  the  parties  beneficially  interested 
thereunder,  and  against  E.,  the  sub-purchaser,  and  others, 
praying  a  declaration  that  the  plaintiff  had  a  lien  on  the 

1  Brown  y.  Yanliei,  7  Humph.  239.  ^  Boon    v.    Barnes,    23    Miss     136; 

8  Hoggatt  V.  Wade,  10  Sm.  &  M.  143.         Shirley  r.  Sugar,  &c    2  t(  v.  Ch.  oOo  ; 

""  Mynne  v.  Alston,  1  J)cv.  Ch.  163. 


634  THE   LAW   OP  MOETaAGES.  [CH.    XXIII. 

estate  for  the  unpaid  purchase-money.  Held,  the  notice 
from  the  attorney  for  F.  and  G.  was  an  acknowledgment 
in  writing  within  the  meaning  of  the  40th  section  of  the 
statute  3  &  4  Will.  4,  c.  27 ;  that  a  person  by  whom  "  the 
money  is  payable,"  means,  in  the  case  of  a  claim  by  equi- 
table lien,  the  person  entitled  to  the  land  on  which  the 
charge  is  sought  to  be  fixed,  and  that  this  acknowledgment 
being  by  devisees  in  trust  for  payment  of  debts,  was  good  as 
against  the  cestui  que  trust  under  the  same  will.^ 

86  b.  There  being  no  proof  as  against  the  cestui  que  trust 
that  the  attorney  who  wrote  the  notice  was  in  fact  the  agent 
of  the  devisees  in  trust,  the  Court  granted  an  inquiry .^ 

37.  A  bill  to  enforce  the  lien  of  a  vendor  alleged,  that 
the  deed  set  forth  a  description  of  the  bills  given  for  the  con- 
sideration, and  by  whom  they  were  drawn  and  indorsed,  but 
also  alleged,  that  such  description  was  given  in  order  to  give 
notice  that  the  price  was  unpaid,  and  to  retain  the  vendor's 
lien.     Held,  the  bill  was  not  bad  on  demurrer.^ 

37  a.  A  writing  at  the  foot  of  a  deed,  signed  by  one  of  the 
grantees,  stating  that  one  instalment  of  the  purchase-money, 
recited  in  the  deed  to  have  been  paid,  still  remained  unpaid, 
is  notice  to  a  purchaser  of  the  grantees,  of  the  lien  of  the 
grantor,  though  the  lien  has  not  been  recorded.'^ 

37  b.  A.  sold  land  to  B.,  executed  his  bond  for  title,  and 
afterwards  died.  The  Probate  Court,  upon  the  application 
of  B.  before  the  purchase-money  was  paid,  directed  the  ad- 
ministrator of  A.  to  convey  the  land  to  B.  He  did  so,  and 
afterwards  sued  B.  for  the  unpaid  purchase-money,  recovered 
a  judgment,  and  caused  his  execution  to  be  levied  upon  the 
land,  which  was  sold,  and  purchased  by  C,  who  sold  it  to 
D.     Held,  the  administrator  had  no  lien.^ 

37  c.  One  who  purchases  bond  fide  from  a  fraudulent  pur- 
chaser will  be  protected  against  the  lien  of  the  vendor.*^ 

1  Toft  V.   Stephenson,   9   Eng.  Law  ■*  Scott  v.  McCullock,  13  Miss.  13. 

and  Eq.  Rep.  80.  ^Boon  v.  Baines,  Ti  Miss.  136. 

'^  Ibid.  « Ibid. 
»  Campbell  v.  Baldwin,  2  Humph.  248. 


en.  XXIir.]       EQUITABLE   MORTGAGES.  —  VENDOR'S    LIEX.  635 

37  d.  Where  a  settler  upon  the  public  lands  of  the  United 
States,  under  a  preemption  right,  sells  his  land,  and  his 
grantee  sells  it  again,  subject  to  the  original  vendor's  claim 
for  the  purchase-money,  which  the  second  grantee  assumes  ; 
the  original  vendor  has  a  lien  for  such  purchase-money, 
which'  he  may  enforce  in  equity  against  the  second  grantee, 
even  after  the  latter  has  taken  out  a  patent  to  the  land  in 
his  own  name,  under  a  subsequent  preemption  lawJ 

38.  The  plaintiff  purchased  land,  but  took  no  conveyance. 
He  afterwards  sold  it,  and  his  grantee,  still  owing  part  of  the 
price,  conveyed  the  land,  with  general  warranty,  but  referring 
to  the  agreement  with  the  plaintiff,  to  trustees  for  the  benefit 
of  creditors.  The  plaintiff  then  brought  a  suit  against  the 
heirs  of  his  grantor  to  obtain  the  title,  and  a  decree  was 
made,  appointing  a  commissioner  to  convey  to  the  plaintiff; 
but  the  commissioner,  by  the  direction  of  the  plaintiff,  con- 
veyed to  the  purchaser  from  the  plaintiff.  The  trustees 
then  sold  the  land,  and  the  plaintiff  files  a  bill  to  subject  it 
for  the  balance  of  the  purchase-money  due  him  from  his 
vendee,  being  insolvent.  The  trustees  and  purchaser  from 
them  denied  having  notice  that  the  purchase-money  was  due, 
at  the  time  of  conveyance  to  the  trustees,  and  there  was  no 
proof  of  notice.  Held,  the  land  was  liable  for  the  purchase- 
money  due  the  plaintiff.^ 

39.  A  purchaser  of  land  paid  $1,000,  and  gave  a  bond  for 
$2,000,  payable  in  two  years,  and  containing  a  memorandum 
below  the  seal,  that  the  land  should  be  liable  for  the  $2,000 
till  paid.  The  obligee  assigned  the  bond,  but  a  few  days 
previously  the  purchaser  conveyed  the  land  to  one  who  had 
loaned  him  $1,200,  taking  back  a  bond  of  defeasance.  The 
sub-purchaser  had  notice  of  the  bond  first  mentioned,  and 
of  its  indorsement.  The  assignee  of  the  bond  brings  a  bill 
in  equity  against  the  obligor,  praying  a  sale  of  the  land. 
Held,  the  sub-purchaser,  having  notice,  was  chargeable  with 

1  Thredgill  v.  Pintard,  12  How.  U.  -  Beirne  v.  Campbell,  4  Gratt,  125. 

S.  24. 


636  THE  LAW  OF  MORTGAGES.        [CH.  XXIII. 

the  lien ;  and,  on  a  similar  principle,  the  plaintiff  should  have 
the  benefit  of  it ;  that  an  equitable  lien  was  assignable,  as 
well  as  a  legal  mortgage.  Decreed,  that  the  plaintiff  should 
recover  the  sum  due,  or,  if  not  paid  in  a  certain  time,  the 
land  to  be  sold.^ 

40.  In  a  suit,  brought  by  an  assignee  of  the  note  made  to 
the  vendor  for  the  purchase-money,  to  enforce  the  lien  against 
a  purchaser  with  notice,  it  is  no  defence,  that  the  original 
vendor  had  not  a  good  title  at  the  time  appointed  for  a  con- 
veyance, the  contract  being  unrescinded,  and  a  title  having 
been  obtained  and  tendered  by  him  before  the  suit  was  com- 
menced.^ 

41.  Bill  to  enforce  a  lien  against  three  persons,  alleging  a 
sale  to  two  of  them,  who  gave  their  notes  for  the  price,  one 
payable  to  the  plaintiff's  wife,  for  release  of  dower ;  a  con- 
veyance made  to  one  in  trust  for  him  and  the  other ;  an  ex- 
press agreement  that  the  notes  should  be  a  lien  ;  and  a  pur- 
chase by  the  third  defendant  from  the  plaintiff's  grantee, 
with  notice.  The  answers  of  the  two  alleged  vendees  denied 
such  trust,  and  such  agreement  for  a  lien,  and  alleged  a  con- 
veyance to  the  grantee  alone,  on  condition  that  the  other 
alleged  joint  purchaser  should  sign  the  notes  as  surety.  The 
third  defendant  admitted  his  purchase,  and  notice  of  the  non- 
payment of  part  of  the  price  ;  but  alleged,  that  he  ascertained 
the  notes  were  signed  by  the  second  joint  purchaser  as  surety, 
and  were  not  therefore  a  lien,  and  that  he  had  paid  all  the 
price.  Held,  there  was  no  sufficient  evidence  of  the  alleged 
trust,  or  of  an  express  lien  ;  and  the  bill  was  dismissed.^ 

42.  A  purchaser,  not  having  paid  for  the  land,  conveyed 
it,  taking  back  two  mortgages,  of  equal  date,  for  parts  of  the 
consideration ;  with  the  intention  that  one  of  them  should  be 
assigned  to  the  original  vendor,  as  security  for  the  original 
purchase-money,  and  have  priority,  accotding  to  the  agree- 
ment between  them.     The  mortgages  were  simultaneously 

1  Eskridf^e  i'.  McClure,  2  Ycrg.  84.  ^  Way  v.  Pattv,  1  Smith,  44. 

-  Brumficld  v.  Palmer,  7  Blackf.  227. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. — VENDOR'S   LIEN.  637 

recorded,  but  the  one  designed  for  the  original  vendor  was 
first  assigned  to  him,  and  afterwards  the  other  was  assigned 
to  another  person  hand  fide^  and  for  full  value.  Held,  this 
assignee  took  his  mortgage,  subject  to  the  original  vendor's 
equity  against  his  vendee ;  that  the  statute  of  registry  had 
no  application  to  the  respective  titles  of  the  two  assignees ; 
that  the  first  purchaser  took  the  vendor's  mortgage  as  trustee 
for  him  ;  that  the  principle,  by  which  a  lien  is  waived  by  the 
taking  of  collateral  personal  security  from  a  third  person, 
did  not  apply,  the  mortgagor  being  the  real  vendee,  and  the 
mortgage  upon  the  land  itself;  that  the  implied  waiver  of 
a  lien  (it  seems)  can  be  set  up  only  by  purchasers  without 
notice  ;  and  that  the  title  of  the  vendor  should  prevail.^ 

42  a.  Where  a  vendor  has  a  lien,  and  his  vendee  sells  part 
of  the  land  without  disclosing  the  lien,  the  second  vendee 
may  compel  the  first  vendor  to  enforce  his  lien  on  the  residue 
of  the  land,  or  else  to  proceed  at  once  in  the  collection  of  his 
debt.2  So  a  vendor,  like  a  mortgagee,  may  lose  his  lien  by 
any  concealment  or  misrepresentation,  through  which  a  third 
person  is  induced  to  purchase  the  land,  as  unincumbered.^ 
But  the  lien  of  the  first  grantee,  who  himself  sells  the  land, 
wiU  not  be  affected  by  representations  of  the  grantor  to  a 
subsequent  purchaser,  that  he  will  take  an  unincumbered 
title.'i 

42  b.  D.,  the  vendee  of  two  tracts  of  land,  part  of  the  orig- 
inal purchase-money  for  which  remained  unpaid,  sold  one 
tract  to  A.,  with  notice  that  this  balance  was  still  due.  On 
appeal  by  A.,  from  a  decree  ordering  the  sale  of  both  tracts, 
for  cash,  to  satisfy  the  original  vendor's  lien,  it  was  held,  that 
such  balance  was  properly  regarded  as  a  lien  on  both  said 
tracts,  that  A.  had  a  right  to  insist  on  the  original  vendor's 
coming  upon  the  tract  of  land  remaining  in  D.'s  hands,  and 


1  Stafford  r.  Van  Rensselaer,  9  Cow.         ^  g^c  p],  oi  ;  Burns  v.  Tavlor.  23  Ala. 
316;  Van  Rensselaer  I'.  Stafford,  1  Ilopk.     255. 

569.  *  Rowland  v.  Day,  IT  Ala.  G81. 

2  Ammerman  v.  Jennings,  12  B.  Men. 
135. 

VOL.  I.  54 


638  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

to  insist  that  the  proceeds  of  its  sale  should  first  be  applied 
in  discharge  of  the  lien  aforesaid,  before  any  resort  should  be 
had  to  the  tract  purchased  by  him,  and  that  a  sale  should  be 
decreed  for  reasonable  credit,  and  not  for  cash.^ 

43.  The  death  of  the  vendee  does  not  defeat  the  lien.  It  is 
said,  the  heir  cannot  be  permitted  to  hold  what  his  ancestor 
unconscientiously  obtained.  And,  after  recovering  a  judg- 
ment at  law  against  the  administrator  of  the  vendee  upon  a 
note  given  for  the  purchase-money ;  upon  a  deficiency  of 
personal  estate,  the  vendor  may  have  a  decree  in  Chancery 
to  have  the  estate  sold.-  {x) 

44.  The  widow's  right  of  dower  has  also  been  held  subject 
to  the  vendor's  lien  for  the  purchase-money  ;  more  especially 
where  there  has  been  only  a  bond  for  a  deed.^ 

45.  Land  was  sold  and  a  part  of  the  price  paid,  the  vendor 
giving  bond  to  convey  upon  payment  of  the  balance.  The 
purchaser  having  died,  held,  his  widow's  right  of  dower  was 
subject  to  the  vendor's  right  of  having  the  land  sold  for  pay- 
ment of  such  balance  ;  and  that  the  purchaser,  at  such  sale, 
under  a  decree  in  equity,  took  a  title  clear  of  the  claim  of 
dower,  she  being  entitled,  however,  to  one  third  of  the  sur- 
plus proceeds  for  her  life.*  [ij) 

46.  In  the  case  of  Nazareth,  &c.  v.  Lowe,^  one  Kelly 
bought  a  lot  of  land  for  a  certain  price,  payable  at  a  future 
time.     Subsequently,  the  vendor  conveyed  to  him,  reserving 

1  Alford  V.  Helms,  6  Gratt.  90.  ^  Crane  v.  Palmer,  8  Blackf.  1 20. 

2  Garson  v.  Green,  1  Johns.  Ch.  308 ;  *  Williams  v.  Woods,  1  Humph.  408. 
Hughes  V.  Kearney,  1  Seh.  &  Lef.  132;         M  jj.  Mon.  257. 

White  V.  Casanane,  1  Har.  &  J.  106. 

(x)  In  Tennessee,  wliere  lands  are  liable  for  the  debts  of  one  deceased, 
it  "was  contended  that  the  rule,  by  which  a  vendor's  lien  binds  the  estate 
in  the  hands  of  the  heir,  did  not  apply ;  but  the  Court  decided  otherwise. 
Eskridge  v.  McClure,  2  Yerg.  84. 

{y)  On  the  other  hand,  it  seems,  that  if  the  title  of  the  husband  to  real 
estate,  in  which  his  widow  is  seeking  to  have  dower,  became  divested  by  the 
enforcement  of  his  vendor's  equitable  lien  for  the  purchase-money,  the 
widow  will  not  be  entitled  to  dower.     Bisland  v.  Hewett,  11  S.  &  M.  1G4. 


CH.  XXIII.]      EQUITABLE  MORTGAGES. VENDOR'S   LIEN.  639 

in  the  deed  a  lien  for  the  consideration,  no  part  of  which  was 
paid.  Held,  after  his  death,  his  widow's  right  of  dower 
was  subject  to  this  lien.  Robertson,  C.  J.,  says: '  —  "  The  lien 
was  coeval  with  the  inception  of  Kelly's  equitable  right  to 
the  lot.  Kelly  acquired  the  equity  subject  to  that  lien,  and 
his  wife's  initiate  right  of  dower  could  not  have  been  better 
or  greater  than  her  husband's  original  right  to  the  lot.  The 
title  and  the  lien  being  connate,  there  never  was  any  right  in 
Kelly  or  his  wife,  unincumbered  by  the  lien ;  and  the  con- 
veyance to  Kelly  having  expressly  reserved  the  lien,  his  legal 
right,  and  that  of  course  also  of  his  wife,  were  subject  to  that 
incumbrance,  just  as  their  equitable  rights  had  always  been. 
Her  claim  to  dower  is  posterior,  in  fact  and  in  law,  to  the 
reserved  lien  for  the  original  consideration." 

46  a.  Where  land  of  a  deceased  person  is  sold,  as  incapa- 
ble of  division,  and  purchased  by  one  of  his  children,  who 
gives  bond  for  the  purchase-money,  but  never  procures  a 
conveyance,  the  widow  of  the  purchaser  cannot  be  endowed 
to  the  prejudice  of  the  other  children,  who  retained  a  lien  on 
the  land  for  their  share  of  the  purchase-money .2 

46  h.  Upon  the  same  principle,  as  bearing  upon  the  rela- 
tion of  husband  and  wife,  where  land  was  purchased  by  a 
husband  with  money  bequeathed  to  his  wife,  it  was  held, 
that  the  vendor  had  a  lien  on  the  land  for  his  purchase- 
money,  whether  it  was  bought  for  the  separate  use  of  the 
wife  or  not.^  So  where  the  deed  is  made  directly  to  the 
wife,  she  is  not  regarded  as  a  purchaser^  but  a  mere  volun- 
teer, subject  to  the  vendor's  lien.* 

47.  It  has  been  held,  that  the  lien  of  a  vendor  for  the  pur- 
chase-money of  the  land  shall  not  prevail  over  the  claims  of 
the  vendee's  creditors.  The  leading  case  upon  this  subject 
is  Bayley  v.  Greenleaf.°     The  forcible  remarks  of  Chief  Jus- 

1  1  B.  Mon.  258.  5  7  Wheat.  46 ;  see  Aldridge  v.  Dunn, 

-  Miller  v.  Stumi),  3  Gill,  .304.  7  Blackf.  249 ;  Taylor  v.  Bakhvin,  10 

3  Lynam  v.  Green,  9  B.  Mon.  363.      «  Barb.  626  ;  Webb  v.  Robinson,  14  Geo. 
*  Upsliaw  V.  Hargrove,  G  Sra.  &  M.     216.      But  see  Lewis    i\  Caperton,  8 
286.  Gratt.  148. 


640  THE  LAW  OF  MORTGAGES.       [CH.  XXIII. 

tice  Marshall,  in  that  case,  applying  to  the  whole  subject 
now  under  consideration,  but  more  especially  to  this  particu- 
lar point,  have  been  already  cited.  (§  12.)  The  facts  of 
the  case  were  as  follows. 

48.  In  1792,  a  person  purchased  land,  and  sold  it  to  one 
of  the  defendants,  who  took  his  title  from  the  first  vendor, 
giving  the  second  vendqr  a  bond  for  the  price.  In  March, 
1796,  this  bond  was  surrendered,  upon  the  obligor's  accept- 
ing bills  for  the  amount,  some  of  which  were  never  paid.  In 
September,  1796,  the  second  purchaser  conveyed  the  land, 
with  other  lands,  in  trust  for  one  who  was  a  surety  for  him, 
and  to  secure  him  for  future  advances  and  liabilities.  In 
March,  1797,  the  trustee  conveyed  to  the  other  defendants, 
in  trust,  for  the  purposes  mentioned  in  the  deed  to  the  trus- 
tee. In  June,  1797,  the  second  purchaser,  with  two  others, 
conveyed  the  land,  with  other  lands,  to  the  other  defendants, 
for  payment  of  their  debts.  Some  doubt  arising  concerning 
the  registration  of  these  deeds,  the  latter  defendants  brought 
a  suit  against  the  second  purchaser,  and  recovered  judgment, 
and  the  land  was  bought  upon  execution  for  them,  and  after- 
wards conveyed  to  them  upon  the  former  trusts.  Both  the 
first  and  second  purchasers  had  become  insolvent,  and  been 
discharged  in  bankruptcy  or  insolvency.  The  first  purchaser, 
and  a  trustee  for  his  creditors,  bring  a  bill  in  equity  against 
the  defendants,  to  subject  the  land  to  payment  of  the  orig- 
inal purchase-money.  One  of  the  defendants,  the  trustee 
above-named,  alleged  that  he  had  contracted  to  sell  the  land 
to  the  other,  but,  the  price  not  being  paid,  that  he  still  re- 
tained the  title.  Held,  the  plaintiff's  lien  should  not  prevail 
over  the  claim  of  the  trustee  on  behalf  of  creditors.^ 

49.  So  in  Gann  v.  Chester,^  it  was  held  that  a  vendor 
cannot  assert  his  lien  against  other  creditors.  Catron,  C.  J. 
says  :  ^  —  "  In  Tennessee,  our  uniform  policy  has  been  to  per- 
mit the  most  unrestrained  alienation  of  lands,  and  to  hold  them 

1  Baylcy  ?>.  Grccnlcaf,  7  Wheat.  4G.  ^  5  Ycr<r.  205  ;  ace.  llobcrts  v.  llose> 

3  Ibid.  207.  2  Humph.  147. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  641 

liable  for  the  payment  of  debts,  the  same  as  personal  prop- 
erty. No  lien  exists  on  the  slave  or  other  personal  property, 
for  unpaid  purchase-money ;  and  the  rule  that  the  vendor 
of  land  has  such  lien,  ^vas  adopted  from  the  British  courts, 
grounded  on  a  policy  in  reference  to  the  liabiKty  of  real 
estate,  essentially  dissimilar  to  ours.  By  our  statutes,  where 
a  regular  mortgage  is  taken,  and  the  lien  created  in  the  most 
formal  manner,  if  it  be  not  registered  in  the  time  prescribed, 
it  does  not  affect  the  creditors  of  the  mortgagor.  They  may 
seize  and  sell  the  estate.  It  would  be  most  inconsistent  to 
sa34j  that  a  secret  lien  for  unpaid  purchase-money,  could  be 
set  up,  ten  years  after  the  vendee  had  been  in  the  visible 
occupancy  and  ownership.  The  attempt  to  enforce  the  lien 
against  the  creditor's  legal  title,  is  now  made  for  the  first 
time  in  this  State.  That  the  like  has  been  done  in  any 
American  court,  we  are  not  informed."  The  learned  Judge 
adds,  the  case  of  Bayley  v.  Greenleaf  "  meets  the  decided 
and  unanimous  approbation  of  this  Court."  ^ 

50.  These  decisions  are  sustained  by  the  following  English 
case,  in  which  some  apparently  contradictory  authorities  are 
examined,  and  held  not  to  be  really  inconsistent  with  the 
doctrine  as  above  stated. 

51.  In  FaweU  v.  Heelis,^  it  was  held,  that  where  the  vendor 
takes  a  bond  for  the  price,  he  has  no  lien  against  the  vendee's 
creditors,  for  whose  benefit  the  estate  has  been  assigned. 
Lord  Apsley,  Chancellor,  says,^  "  Q.  Whether  plaintiff  has 
an  equitable  lien  against  the  creditors.  It  was  laid  down  as 
a  general  rule,  that  the  seller  has  such  a  right,  not  only  against 
the  purchaser,  but  against  his  creditors.  Three  cases  cited. 
Chapman  v.  Tanner,  1  Vern.  267 ;  accqrding  to  the  report  it 
is  in  point ;  but  it  appears  by  the  Uegister's  book  that  the 
seller  was  to  keep  the  title-deeds  till  he  was  paid.  The  Court 
said,  that  a  natural  equity  arose  from  his  having  the  deeds  in 
his  custody.  PolLxfen  v.  Moore,  3  Atk.  272,  very  inaccurately 

1  5  Yerg.  205 ;  ace.  Roberts  v.  Kose,  ^  Ambl.  724. 

2  Humph.  147.  3  jb.  726. 

54* 


642  THE   LAW   OF  MORTGAGES.  [CH.  XXIII. 

reported.  J.  P.  seized  in  fee,  after  the  death  of  his  mother, 
of  Orchard's  farm,  agreed  to  sell  for  £1,200,  and  delivered 
possession  to  Moore  ;  afterwards  P.  let  the  farm,  and  received 
the  rents ;  but  by  reason  that  the  purchase-money  was  not 
paid,  he  kept  the  title-deeds.  Bill  to  have  the  purchase  com- 
pleted, he  offering  to  account  for  the  rents,  and  to  deliver  up 
the  deeds.  The  question  in  the  cause  was,  How  to  secure 
the  legatee.  FordifT  v.  Scrugham,  8th  December,  1769,  be- 
fore Lord  Camden.  The  decree  is  right,  but  did  not  proceed 
on  this  notion  of  equitable  lien  upon  the  estate.  In  this  case 
it  does  not  appear  that  it  was  the  intention  of  the  parties, 
that  the  vendor  should  have  such  a  lien,  but  a  receipt  taken 
for  the  consideration-money,  on  the  back  of  the  deed,  and  the 
bond  was  accepted  as  a  satisfaction  for  the  purchase-money. 
II  the  vendor  parts  with  his  estate,  and  takes  a  security  for 
the  consideration-money,  there  is  no  reason  for  a  court  of 
equity  to  assist  him  against  the  creditors  of  the  purchaser. 
Dismiss  the  bill." 

52.  An  agreement  by  a  debtor  to  execute  a  mortgage  does 
not  create  a  lien  prior  to  that  of  a  judgment,  where  both 
attach  at  the  same  time.i 

53;  A  mortgagee,  having  obtained  a  decree  of  foreclosure 
and  sale,  agreed  with  a  creditor  to  give  him  a  mortgage 
within  ten  days  after  he  should  acquire  a  title  under  the  sale ; 
which  he  accordingly  did  ;  but  before  the  agreement  another 
creditor  had  a  judgment  docketed  against  him.  Held,  the 
former  creditor  was  not  entitled  to  priority  over  the  latter.^ 

54.  Contrary  to  the  general  doctrine  above  stated,  where 
land  was  sold  by  parol,  the  vendor  retaining  the  title-deeds, 
and  the  vendee  took  possession,  and  commenced  building  a 
house ;  held,  the  vendor  was  entitled  to  the  consideration- 
money  against  the  lien  creditors.^ 

55.  So,  in  distributing  the  proceeds  of  a  sheriff's  sale,  a 
lien  for  the  balance  of  the  purchase-money,  subject  to  which 

1  Dwight  V.  Newell,  3  Comst.  185.  ^  Kline  v.  Lewis,  1  Aslim.  31. 

■^  Ibid. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S   LIEN.  643 

the  land  was  conveyed  to  the  defendant,  shall  have  priority- 
over  subsequent  judgment  creditors." 

55  a.  A.  sold  land  to  B.,  and  retained  the  title  as  security 
for  the  p^chase-money,  and  a  balance  remained  unpaid. 
Judgment  was  rendered,  and  execution  issued  against  ,B., 
and  the  land  purchased  from  A.  was  levied  upon.  After  the 
execution  was  returned,  and  before  a  venditioni  exponas  was 
issued,  B.  paid  the  balance  of  the  purchase-money.  Held, 
B.'s  interest  in  the  land,  before  he  paid  the  balance  of  the 
purchase-money,  could  not  be  sold  under  execution,  neither 
could  land,  to  which  he  acquired  title  after  the  return  of  the 
execution,  be  sold  under  the  venditioni  exponas.^ 

55  b.  The  vendor's  lien  will  prevail  against  a  voluntary 
conveyance,  made  by  the  vendee,  in  trust  for  the  benefit  of 
his  creditors,  in  consideration  of  preexisting  debts ;  where  a 
bill  has  been  brought  to  enforce  such  lien,  before  the  creditors 
have  signified  their  acceptance  of  the  assignment,  by  some 
distinct  affirmative  act,  indicating  their  election  to  claim  or 
take  benefit  under  the  deed.^ 

55  c.  A  father  conveyed  to  his  son,  but  remained  in  pos- 
session of  the  land.  About  a  year  afterwards,  he  entered  into 
a  written  agreement  with  the  son,  that  the  father  should 
retain  and  improve  the  land  during  his  life,  at  a  nominal  rent, 
with  a  provision  for  his  widow,  if  she  should  survive  him ; 
the  son  agreeing  to  execute  his  bonds  to  his  brothers  and 
sisters  for  four  fifths  of  the  value  of  the  land,  to  become  due 
after  the  father's  death,  being  for  the  balance  of  the  purchase- 
money.  The  son  executed  the  bonds,  and  'the  father 
remained  in  possession  till  the  son  became  insolvent,  and 
conveyed  the  land  to  trustees  for  benefit  of  creditors.  The 
agreement  was  not  acknowledged  or  recorded.  The  father 
and  the  obhgees  file  a  bill  to  prevent  a  sale,  pending  which 
the  father  dies.     Held,  there  was  a  lien  on  the  land  for  pay- 


1  Barnitz  v.  Smith,  1  W.  &  S.  142.  ^  Qreen  v.  Demoss,  10  Humph.  371. 

2  Badham  v.  Cox,  11  Ired.  436. 


644  THE   LAW   OF   MOKTGAGES.  [CH.  XXIII. 

ment  of  the  bonds  from  the  proceeds  of  the  land,  as  against 
the  son,  trustees,  and  judgment  and  general  creditors^ 

56.  The  lien  in  question  may  be  enforced  by,  as  well  as 
against,  other  parties  than  those  originally  concerned  in  the 
sale. 

56  a.  Where  the  original  vendor  has  died,  an  agreement  of 
doubtful  import  between  one  of  his  executors  and  a  second 
purchaser,  the  first  vendee  being  insolvent,  will  not  have  the 
effect  of  discharging  the  vendor's  lien.  Any  agreement  of 
this  nature  would  not  so  operate  even  against  the  party 
making  it,  and  still  less  against  his  co-executor.^ 

56  b.  It  will  be  seen  {infra,  §  59,)  that,  in  many  of  the  cases 
where  the  question  of  waiver  of  the  vendor's  lien  has  arisen, 
the  claim  has  been  made  by  an  assignee  of  the  security  taken 
for  the  purchase-money.  The  same  right  has  been  allowed 
in  favor  of  parties,  claiming,  not  by  express  assignment,  but 
by  mere  equitable  substitution. 

57.  "Where  sureties  were  bound  for  the  price  of  land  sold, 
and  had  filed  a  bill  for  the  sale  of  it  to  pay  the  debt,  the  pur- 
chaser having  died  insolvent,  and  pending  the  suit  paid  the 
debt ;  held,  they  should  be  presumed  to  have  paid  with  an 
understanding  that  they  should  be  substituted  to  the  lien  of 
the  vendor ;  and,  though  the  land  had  been  repeatedly  sold 
after  the  original  sale,  as  the  lien  of  the  first  vendor  was  an 
elder  equity  than  that  of  either  of  the  subsequent  purchasers, 
it  should  prevail  over  them ;  they  having  neither  paid  a  con- 
sideration, nor  taken  deeds.^  But  one  person  cannot  acquire 
a  lien  upon  land  purchased  by  another  under  an  executory 
contract,  by  an  unauthorized  payment  of  the  purchase-money.* 
And  it  has  been  held,  that  where  a  vendor  gives  a  deed  and 
takes  the  note  of  the  vendee,  indorsed  by  a  third  person,  the 
indorser  is  not  entitled  to  have  the  land  set  aside  for  the  pay- 
ment of  the  purchase-money,  where  he  has  not  made  it.^ 

1  Ilcpp  D.  Ilcpi),  12  Ciill  &  J.  341.  see   Foster    v.    Trustees,    &c.   3    Ala. 

2  Stuiirt  V.  Abbott,  '.)  Griitt.  252.  302. 

5  Kleiser  v.  Scott,  G  Dana,  138;  Gliis-         "'  Triicsaell  v.  Callaway,  6  Mis.  605. 
elin  V.'  Fergus,  4   liar.  &  J.  .522.     But        ^  Bradford  v.  Marvin,  2  Florida,  463. 


CH.   XXIII.]     EQUITABLE  MORTGAGES. —  VENDOR'S   LIEN.  645 

58.  Where  a  purchaser  discharges  the  lien,  equity  will  sub- 
stitute him  in  place  of  the  vendor,  as  against  another  incum- 
brancer.' 

58  a.  Bill  in  equity,  to  foreclose  a  mortgage  for  ^6,000. 
Pending  the  bill,  other  parties  were  brought  in  as  defendants, 
and  in  their  answers,  which  they  made  cross-bills,  alleged 
that  the  land  mortgaged  was  conveyed  to  the  original  defend- 
ant, by  a  deed  which  recited  payment  of  the  purchase-money, 
when  in  fact  a  credit  was  given,  and  the  notes  for  the  price 
had  never  been  paid,  but  had  been  assigned  to  them,  thus 
giving  them  the  lien  of  the  vendor,  in  preference  to  the  plain- 
tiff's mortgage.  The  plaintiff  alleged  in  reply,  that  the  potes 
were  given  upon  a  joint  sale  of  the  land  and  a  stock  of  mer- 
chandise ;  that  he  was  a  purchaser  for  valuable  consideration, 
without  notice,  and  that  the  purchase-money  remained  unpaid 
when  he  took  his  mortgage.  Held,  it  not  appearing  what 
portion  of  the  notes  were  given  for  the  land,  no  decree  could 
be  made  to  establish  the  alleged  lien ;  and,  the  mortgagee 
being  ignorant,  when  he  took  his  mortgage,  that  the  purchase- 
money  was  unpaid,  and  the  deed  alleging  it  to  be  paid,  the 
lien  was  invalid  against  him.^ 

58  b.  The  lien  of  a  vendor  is  the  proper  subject  of  a  mort- 
gage ;  and  a  purchaser  under  a  decree  of  foreclosure  acquires 
all  the  vendor's  title,  as  against  him  and  the  mortgagee.^ 

58  c.  If  the  land  is  sold  to  one  person,  and  the  price 
received  from  another,  who  takes  the  note  of  the  former 
therefor,  the  latter  has  no  lien.* 

58  d.  One  of  two  joint  purchasers  having  died,  the  other 
paid  the  whole  price,  and  a  conveyance  was  made  to  him 
and  the  heirs  of  the  deceased,  in  common.     Held,  there  was 
'  no  lien  on  the  share  held  by  the  heirs.^ 

58  e.  So,  a  third  party,  who  advances  money  to  a  purchaser 
to  enable  him  to  buy  lands,  cannot  claim  the  benefit  of  the 
vendor's  lien.^ 

1  rianters,'  &c.  v.  Dodson,  9  Sm.  &.  *  Skagfs  v.  Nelson,  25  Miss.  8S. 

M.  527.  5  Crane  v.  Caldwell.  U  lllin.  468. 

'  Crowning  v.  Behn,  10  B.  Men.  383.  '^  StanscU  v.  Roberts,  13  Ohio,  148. 
^  Trammell  v.  Simmons,  17  Ala.  411. 


646  THE  LAW   OF  MORTGAGES.  [CH.  XXIII. 

59.  It  may  have  been  gathered  from  many  of  the  author- 
ities already  cited,  and  more  particularly  from  the  series  of 
cases  collected  in  Fish  v.  Howland,  {Svpra,  §  17,)  that 
the  question  of  a  vendor's  lien  has  generally  arisen,  not 
from  a  denial  of  the  general  doctrine,  but  only  of  its  appli- 
cation to  the  particular  case  under  consideration,  in  conse- 
quence of  an  alleged  waiver  of  the  lien  by  some  act  of  the 
party  claiming  it.^  In  reference  to  this  particular  branch  of 
the  subject,  the  cases  will  be  found  peculiarly  uncertain  and 
inconsistent,  {z)  So  far  as  any  settled  rule  can  be  deduced 
from  them,  it  may  be  stated  as  follows :  The  law  presumes 
an  intention  to  retain  a  lien,  and  imposes  upon  the  vendee 
the  burden  of  proving  the  contrary.  As  evidence  of  such 
contrary  intention,  it  was  once  held,  and  such  seems  to  have 
been  the  rule  of  the  civil  law,  that  the  lien  is  defeated  by  the 
giving  of  an  express  and  distinct  security  for  the  purchase- 
money,  such  as  a  bond  or  note;^  but  it  seems  to  be  now 
well  settled,  that  in  order  to  discharge  the  lien,  the  vendor 
must  take  collateral  security,  either  in  property  (a)  or  the 
engagement  of  some  third  person.     A  receipt  upon  the  deed 

1  See  Coote,  266.  428 ;  Williams  v.  Eoberts,  5,  35 ;  Fol- 

2  See  Wagham  v.  Coomcs,  14  Ohio,        lett  v.  llccse,  20,  548. 


(z)  Lord  EldoD,  in  Mackreth  v.  Sjmmons,  (15  Ves.  344,)  expresses  a 
strong  regret  as  to  the  condition  of  the  question  in  the  English  courts.  He 
says  :  —  "  The  more  modern  authorities  upon  this  subject  have  brought  it  to 
this  inconvenient  state,  that  the  question  is  not  a  dry  question  upon  the  fact, 
■whether  a  security  was  taken,  but  it  depends  upon  the  circumstiinces  of  each 
case,  -whether  the  Court  is  to  infer  whether  the  lien  was  intended  to  be  re- 
served, or  that  credit  was  given,  and  exclusively  given,  to  the  person  from 
whom  the  other  security  was  taken." 

(a)  Where  a  certain  sum  is  to  be  paid  in  cash,  and  the  rest  secured  upon 
the  property  by  a  deed  of  trust ;  and  half  the  cash  payment  is  made,  and 
the  deed  given  as  agreed ;  there  is  no  lien  for  the  remainder  of  the  cash 
payment.  Phillips  v.  Sanderson,  1  Sra.  &  M.  4G2.  The  lien  is  not  affected 
by  taking  other  security,  u«l4!ss  given  in  pursuance  of  the  original  agree- 
ment, and  not  by  the  vendee's  voluntary  act.  Van  Doren  v.  Todd,  2  Green, 
Ch.  307. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S   LIEN.  647 

for  the  price  does  not  destroy  the  lien  ;  being  not  conclusive 
evidence  of  payment ;  ^  more  especially  where  the  vendor  re- 
mains in  possession  under  a  parol  agreement  that  he  shall 
do  so  until  payment.^  The  taking  of  independent  collateral 
security  is  said  to  be,  "  to  some  extent  inconsistent  with  the 
continued  existence  of  the  lien."  ^  But  taking  other  specific 
security  or  a  surety  is  no  waiver  where  no  actual  conveyance 
is  made."^  So  it  is  held,  that  if  a  surety  pay  the  debt,  he 
shall  be  substituted  to  the  lien  of  the  vendor,  if  a  lien  were 
expressly  reserved.^ 

60.  More  especially  is  the  taking  of  personal  security  held 
to  be  no  waiver,  where  there  has  been  a  mere  sale,  but  no 
actual  conveyance.^  Thus  it  is  held,  that  a  vendor,  retaining 
the  title  as  security,  retains  the  lien  as  long  as  he  continues 
to  have  a  right  of  action  for  the  purchase-money."  So, 
although  a  vendor  m^y  waive  his  lien  by  taking  security 
and  making  the  deed,  yet,  when  he  has  not  made  a  deed,  he 
may  refuse  to  do  it  tiU  payment ;  and  by  bill  in  equity  may 
subject  the  land  to  such  payment.^ 

60  a.  Where  an  equitable  interest  in  land  was  sold,  and 
security  taken  for  the  purchase-money,  by  which  the  vendor's 
lien  was  extinguished,  and  the  legal  title  afterwards  came  to 
the  vendor  by  a  deed  of  trust,  held,  he  could  not  retain  as 
security  such  title  for  his  debt.^ 

61.  In  Tennessee,  the  following  view  is  taken  of  this  par- 
ticular branch  of  the  subject :  "  By  the  established  rules  in 
England,  which  have  been  recognized  and  acted  upon  in 
New  York,  Virginia,  North  Carolina  and  Georgia,  and  also 


1  1  Hill.  R.  p.  474,  475 ;  Honore  v.  2  Mich.  243 ;  Vail  v.  Foster.  4  Comst. 

Bakewell,  6  B.  Mon.  67:  Thornton  i?.  312. 

Knox,  ib.  74 ;  Palmer,  1  Doug.  (Mich.)  -  Duval  v.  Eibb,  4  Hen.  &  M.  113. 

422;  Campbell  v.  Baldwin,  2  Humph.  3  Manly  v.  Slason,  21  Verm.  271. 

248;   Glower  i'.  Rawlings,  9  Sm.  &  M.  *  Lewis  v.  Caperton,  8  Gratt.  148. 

122;  John-son  r.  Sugg,  13ib.  34G;  Man-  5  xjzzell    v.    Mack,    4    Humph.    319; 

ly  V.  Slason,  21  Verm.  271;  White  v.  Shav  r.  Pattv.  1  Cart.  102. 

Dougherty,  Mart.  &  Y.  309;  Roon  v.  ^  Clower  i-' Rawlings,  9  Sm.  &  M.  122. 

Murphy,  6  Blackford,  272;  Howlett  v.  '  Hanna  v.  Wilson,  3  Gratt.  243. 

Thomp"son,  1  Ired.  Eq.  369;  Halleck  i-.  «  Kleiser  v.  Scott.  6  Dana,  137. 

Smith,  3  Barb.  267  ;   Sears  v.   Smith,  »  FoUett  v.  Rcesej  20  Ohio,  546. 


648  THE  LAW   OF   MORTGAGES.  [CH.  XXIII. 

in  this  State,  on  a  former  occasion,  there  is  such  a  lien  raised 
by  the  law,  upon  the  supposed  intention  of  the  parties,  that 
it  should  not  be  in  the  power  of  the  vendee  to  keep  the  lands 
and  not  pay  the  debt,  or  to  transmit  them  to  heirs  or  assigns, 
and  disappoint  the  vendor  of  the  price  engaged  to  be  paid 
for  it.  This  presumed  intention,  like  all  other  presumed 
matters,  gives  way  to  proof  which  establishes  the  contrary  of 
what  is  presumed ;  but  is  so  strongly  raised,  that  it  cannot 
be  displaced  but  by  clear  evidence  to  be  adduced  on  the  part 
of  the  vendee,  which  also  must  clearly  show  that  the  parties 
had  a  different  intention.  A  bond,  note,  or  covenant  given 
by  the  vendee,  will  not  amount  to  such  evidence,  but  will 
only  be  deemed  an  additional  security,  like  a  bond  accom- 
panying a  mortgage,  and  may  be  necessary  to  control  the 
receipt  indorsed  on  the  deed,  or  admitted  in  the  body  of  it. 
A  bond  by  a  third  person  for  the  purchase-money,  or  with  a 
third  person  as  security ;  or  a  lien  agreed  upon  by  keeping 
the  deed  of  conveyance  as  an  escrow  for  part  of  the  purchase- 
money,  and  an  agreement  when  that  was  paid  to  deliver  the 
deed,  and  to  take  bonds  or  negotiable  paper  indorsed  for  the 
residue,  evince  a  design  to  release  the  lien  for  the  residue. 
So  would  a  mortgage  upon  other  lands  of  the  vendee,  than 
those  purchased  of  the  vendor ;  and  so  might  other  facts 
which  manifest  that  a  lien  was  not  intended  by  the  par- 
ties." 1 

62.  The  lien  is  not  waived  by  taking  notes,  for  the  price, 
though  payable  on  time;^  more  especially  if  worthless,  and 
if  there  be  any  fraud.^  So,  though  a  note  may  be  paid  in 
leather.'^  So  the  taking  of  an  indorser  is  held  not  conclusive 
evidence  of  waiver,  but  liable  to  be  rebutted  by  other  proof.^ 
So  the  lien  may  continue,  notwithstanding  a  renewal  of  the 
notes  originally  given.*^     And  the  taking  of  a  bank  check  for 


1  Per  Haywood,  J.,  Eskridge  v.  Mc-        *  Plowman  v.  Riddle,  14  Ala.  1G9. 
Clure.  2  Yerg.  84.  "         '  ^  Campbell  v.  Baldwin,  2  Hnm])h.  248. 

2  Manly  w.  Slason,  21  Verm.  271.  '^  Aldridge  v.  Dunn,  7  Blackf.   249; 

3  Shelton  v.  Tiffin,  G  How.  163.  Thornton  v.  Knox,  G  B.  Mon.  74. 


CH.  XXIII.]     EQIHTABLE  MORTGAGES.  —  VENDOR'S   LIEN.  6-19 

the  price,  has  been  held  to  be  no  waiver.^  Otherwise,  where 
an  order  on  a  third  person  is  given,  and  the  vendor  is  guilty  of 
laches  in  notifying  the  vendee  of  non-payment  ;  thereby 
subjecting  him  to  loss.^  But  if  A.  sells  to  B.,  and  B.  to  C, 
and,  by  an  agreement  between  all  parties,  C.  mortgages  to 
A.  to  secure  the  purchase-money  due  him,  B.  has  no  lien.^ 
So  it  has  been  held  that  the  lien  is  not  waived  by  taking  a 
mortgage  for  security,  but  shall  prevail  over  a  judgment  re- 
covered between  the  making  and  recording  of  the  mortgage."* 
Othervsdse,  where  a  mortgage  is  taken  on  the  land  sold.^  So 
where  the  vendee  of  land  gave  his  notes  to  creditors  of  the 
vendor,  and  afterwards  a  mortgage  ;  held,  the  vendor  had  no 
lien.^ 

63.  Where  a  vendor  takes  a  bond  for  the  price,  retaining 
the  title,  he  does  not  lose  his  lien  by  surrendering  the  bond 
and  taking  an  order  upon  a  thnd  person,  payable  at  a  future 
day,  which  is  not  accepted.  And  he  may  enforce  the  lien 
before  the  order  falls  due.'     (See  §  62.) 

64.  A  vendee  sold  a  portion  of  the  land,  with  notice  of  the 
vendor's  lien,  and  with  an  agreement  that  the  purchaser 
might  arrange  with  the  vendor  for  the  purchase-money,  pro- 
vided he  would  procure  from  the  vendor  a  release  of  the 
vendee  to  that  amount.  The  purchaser  accordingly  gave 
the  vendor  his  note,  and  the  latter  released  the  vendee  for 
that  portion  of  the  price.  Held,  the  vendor  still  retained  a 
lien  on  the  land  for  the  whole  purchase-money .§     (See  §  63.) 

65.  Where  a  vendor  retains  the  title,  and  receives  collat- 
eral securities  with  an  agreement  to  collect  them,  and  em- 
ploys the  vendee  to  make  such  collection  ;  he  still  retains  his 
lien  for  the  price,  notwithstanding  the  payment  of  the  secm-i- 
ties  to  the  vendee,  until  the  vendee  accomits  for  the  amount 
received,  even  as  against  judgment  creditors  whose  lien 
accrued  before  the  payment.     And  the  assignee  of  the  ven- 

1  Honore  v.  Bakewell,  6  B.  Mon.  67.  5  Young  v.  Wood,  11  B  Mon.  123. 

'-  Fowler  v.  llust,  2  A.  K.  Mar.  294.  ^  McClure  v.  Harris,  12  B.  Mon.  261. 

3  Taylor  v.  Adaius,  Gilm.  329.  '  Kniscly  v.  William?.  3  Graft.  265. 

*  Boos  V.  Ewing,  17  Ohio,  500.  **  Honore  v.  Bakewell,  6  B.  Mon.  67. 


VOL.    I. 


55 


650  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

dor  succeeds  to  his  rights  as  existing  at  the  time  of  assign- 
ments 

65  a.  Where  a  vendor  brings  an  action  for  the  first  instal- 
ment of  the  purchase-money,  recovers  judgment,  and  levies 
execution  upon  the  land,  his  lien  is  gone  ;  and  equity  vviU 
compel  him  to  convey  the  legal  title  to  the  execution  pur- 
chaser.^ 

65  h.  A  judgment  against  a  vendee,  by  articles  of  agree- 
ment, binds  only  his  interest  in  the  land  to  the  extent  of  the 
purchase-money  paid ;  the  balance  is  a  lien  on  the  prem- 
ises. So,  although  after  judgments  obtained  against  the 
vendee,  the  latter,  by  a  parol  agreement,  gives  up  the  articles 
of  agreement,  absolutely,  to  one  to  whom  he  had  previously 
transferred  the  same  as  collateral  security,  and  the  latter 
receives  a  deed  for  the  premises  from  the  vendor.^ 

66.  A  vendor  took  notes  for  the  price,  and  gave  bond  to 
convey  on  payment  thereof.  For  these  notes,  the  notes  of 
another  person,  guaranteed  by  the  purchaser,  were  afterwards 
substituted.     Held,  the  vendor  had  still  a  lien  for  the  price.* 

67.  Where  «in  administrator  sells  land  by  order  of  Court, 
and  takes  personal  security  for  the  price,  he  does  not  thereby 
discharge  his  lien.^  But  where  a  testator  directs  that  his 
lands  be  sold,  and  the  proceeds  divided  among  his  children, 
and  they  sell  their  interest,  taking  bonds  for  the  price  ;  they 
have  no  lien  on  the  land.^ 

68.  It  is  sometimes  held,  that  an  assignee  of  a  claim  for 
the  price  has  a  lien."  Thus  if  the  vendor  assigns  notes  given 
for  the  purchase-money,  the  lien  has  been  held  to  pass  with 
them.  So  although  a  deed  is  subsequently  made  to  the  ven- 
dee, the  lien  is  held  to  be  good  against  a  judgment  recovered 
after  the  deed.^  So  where  a  vendor  assigns  notes  given  for 
the  purchase-money,  without  indorsement,  it  is  held  that 

1  Watson  V.  Will.ird,  9  Barr,  89.  ^  Hojjgatt  v.  Wade,  10  Sm.  &  M.  143. 

2  Tliompson  v.  M(:Gill,  1  Frecm.  Ch.         ^  sharp  v.  Kerns,  2  Grutt.  348. 

401.  ■^  Ilonorc  t'.  Bakewell,  G  B.  Mou.  67. 

»  Russell's  Appeal,  15  Penn.  319.  ^  parkcr  v.  Kelly,  10  Sm.  &  M.  184, 

*  Anthony  v.  Smith,  9  Humph.  508. 


CH.  XXIII.]     EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  651 

the  assignee  may  enforce  a  lien  against  a  purchaser  with 
notice,  (b)  So  also  may  the  vendor,  when  the  notes  are 
returned  to  him.  (c)  But  not  a  holder  of  collateral  security 
for  the  notes.' 

69.  Where  a  memorandum  was  made  upon  the  face  of 
the  bond  given  for  the  price,  that  the  land  should  be  liable 
for  the  debt ;  held,  an  assignee  of  the  bond  had  in  equity  the 
same  lien  which  the  assignor  had.^ 

69  a.  Land  was  conveyed  by  deeds,  in  which  there  was 
recited  a  consideration  of  ^800,  "  paid  and  secured  to  be 
paid."  The  vendee  gave  his  note  for  part,  which  the  ven- 
dor's agent  assigned  to  A.  Held,  on  a  bill  by  the  vendee,  to 
enjoin  A.  against  enforcing  his  judgment  until  the  lien  was 
releaffd,  that  as  the  lien,  if  there  were  any,  passed  with  the 
note  to  the  assignee,  it  would  be  extinguished  by  payment 
of  the  note.^ 

69  b.  Judgments  were  recovered  in  several  actions  by  the 
vendpr  of  land,  upon  two  notes  of  equal  amount,  given  for 
the  purchase-money.  The  vendee  sold  an  undivided  moiety 
of  the  land  to  A.,  and  the  other  to  B.,  when  each  agreed  to 
pay  one  of  the  judgments.  C,  at  the  request  of  A.  and  B., 
took  an  assignment  of  the  judgments,  A.  promising  C.  to  pay 
him  one  of  the  judgments,  and  B.  the  other.  The  judgment 
which  A.  was  to  pay  was  paid  to  C.     On  a  bill  to  enforce 

1  White  V.  Stover.  10  Ala.  441 ;  Nor-         ^  Eskridge  v.  McClure,  2  Yerg.  84. 
veil  I'.  Johnson,  5  Humph.  489  ;  Kelly        ^  Wilder  v.  Smith,  12  B.  Man.  94. 
V.  Pavne,  18  Ala.  37  ;  Roper  v.  McCook, 
7  Ala.  318. 


(h)  The  lien  of  a  vendor  for  the  purchase-money  passes  to  the  devisee  of 
the  vendee's  notes.     Tierman  v.  Beam,  2  Ham.  383. 

(c)  A  vendee  of  land,  having  taken  a  bond  for  conveyance,  to  be  made 
on  payment  of  the  price,  and,  before  such  payment,  assigned  the  bond  ; 
brings  a  bill  in  equity  against  the  assignee  to  enforce  a  lien  for  the  purchase- 
money,  not  making  the  original  vendor  a  party.  Held,  the  suit  could  not 
be  maintained.  Thompson  v.  Williams,  10  Sm.  &  M.  173.  See  Briggs  v. 
Hill,  6  How.  (Miss.)  362 ;  Claiborne  v.  Crockett,  3  Yerg.  27;  Green  v.  De- 
moss,  10  Humph.  371 ;  Wellborn  v.  Williams,  9  Geo.  86. 


652  THE   LAW   OP   MORTGAGES.  [CH.  XXIII. 

the  lien  of  the  vendor  upon  the  land,  it  was  held,  that  an 
undivided  half  of  the  land  could  be  subjected  to  the  payment 
of  the  outstanding  judgment.^ 

70.  The  plaintiff  advanced  money  to  another  person,  to 
enter  at  a  land  office  a  tract  of  land  for  him,  which  the  re- 
ceiver of  the  money  did  in  his  own  name,  and  a  patent  was 
issued  accordingly.  Afterwards  the  patentee  was  authorized 
by  the  plaintiff  to  sell  the  lands  for  him,  which  he  did,  taking 
notes  for  the  price,  payable  to  the  patentee.  The  notes  were 
delivered,  but  not  indorsed,  to  the  plaintiff,  who  recovered 
judgment  upon  them  for  his  own  use,  in  the  payee's  name, 
which  remained  unsatisfied.  Held,  the  plaintiff  might  en- 
force a  lien  for  the  purchase-money .^ 

71.  It  has  been  held  in  other  cases,  however,  that^  the 
vendor  assigns  his  security  for  the  price  absolutely,  the  lien 
is  lost.  So,  also,  that  the  lien  does  not  pass  with  the  note 
given  for  the  price.^  Otherwise,  if  he  assigns  merely  for  pay- 
ment of  his  debts,  so  far  as  the  security  is  sufficient  for  that 
purpose,*  or  as  collateral  security  for  a  debt.  In  such  case, 
the  assignor  and  assignee  must  join  in  a  suit  to  enforce  the 
lien.^  So  where  the  vendor  has  given  bond  for  title,  from 
which,  of  course,  he  cannot  be  released  without  consent  of 
■fefee  vendee.^ 

71  a.  Where  an  agent  sells  land  of  his  principal,  and  fraud- 
ulently takes  a  note  for  the  purchase-money  in  his  own 
name,  which  he  assigns,  the  vendor's  lien  does  not  pass  to 
the  assignee  of  the  note.'^ 

71  b.  A.  agreed,  in  1840,  to  sell  a  lot  of  land  to  B.,  who 
gave  his  note  for  the  purchase-money,  payable  in  1846.  On 
the  same  day,  A.  indorsed  the  note  to  C,  and  guaranteed 
the  payment.     A.,  with  others,  absconded  to  Alabama,  where 


1  Wilkins   v.    Humphreys,    23    Miss.  14  Ohio,  437  ;  Dixon  v.  Dixon,  1  Md. 

(1  Ctish.)  311.  Ch.  220. 

'^  GriiL'j:,^s  V.  Bailey,  10  Ala.  344.  *  Hiillock  v.  Smith,  3  Barb.  267. 

a  Wehb   V.   Bohiiison,    14   Geo.  216;         i^  Plowman  v.   Riddle,  14  Ala.  169; 

Jackmiin    v.    IluUcck,    1     Ham.    318;  Betton  y.  Williams,  4  Flor.  11. 
Brush  V.  Kinsley,  14  Ohio,  20 ;  Taylor  v.        ^  Ibid. 
Foote,  Wright,  356 ;  Ilorton  v.  Horner,         ^  Dciblcr  v.  Barwick,  4  Blackf.  339. 


CH.  XXIII.]      EQUITABLE   MORTGAGES. VENDOR'S   LIEN.  653 

C.  pursued  him,  and  sued  him  on  B.'s  note,  with  others,  and 
compelled  him  to  compromise,  by  conveying  to  C.  enough 
property,  by  mortgage,  to  secure  all  the  debts.  C.  agreed  to 
extend  the  time  of  paying  B.'s  note  five  years,  and,  on  A.'s 
making  a  clear  title  to  the  land  agreed  to  be  sold  to  B.,  either 
to  B.  or  C,  to  relieve  him  from  his  liability  as  guarantor.  A. 
offered  C.  a  deed  of  the  land,  which  he  refused,  and  A.  sold 
it  to  D.J  against  whom  C.  brought  his  bill  to  enforce  his  lien, 
as  assignee  of  the  vendor's  security.  Held,  C.  did  not,  by 
taking  B.'s  note  with  A.'s  guaranty,  acquire  any  lien  on  the 
land,  but  that  the  transaction  was  a  waiver  of  any  lien,  as 
the  guaranty  was  a  substitution  of  personal  for  real  security, 
and  that  as  against  D.  the  lien  had  been  waived  by  all  these 
proceedings,  if  C.  had  ever  had  a  lien,  which  he,  as  assignee, 
could  enforce.! 

71  c.  The  assignee  of  a  note  given  for  the  purchase-money 
of  land,  with  surety,  is  not,  after  discharging  the  surety,  enti- 
tled to  enforce  the  vendor's  lien  on  the  land.^ 

72.  A  purchaser  cannot  avoid  the  vendor's  lien  on  the 
ground  of  tvant  of  title  in  the  latter,  unless  he  alleges  and 
proves  the  specific  defects.^ 

73.  Nor  on  the  ground  of  an  outstanding  mortgage,  unless 
it  be  shown  to  have  been  made  by  a  party  having  authority 
to  execute  it.'^ 

73  a.  T.  leased  a  tenement  to  K.,  and  afterwards  sold  the 
same  to  M.,  agreeing  that  the  rent  reserved  should  be  received 
by  T.  as  so  much  of  the  purchase-money.  Held,  if,  in  conse- 
quence ^of  the  sale,  the  right  of  the  vendor  to  collect  the  rents 
was  lost  or  impaired,  the  vendee  could  not  release  or  collect 
them  without  accounting  for  them  to  the  vendor ;  and  that 
the  stipulation  in  regard  to  the  rents  did  not  waive  the  lien 
for  any  part  of  the  purchase-money .'^ 

74.  Bill  in  equity  against  the  widow  and  heirs  of  a  deceased 

1  Woods  V.  Bailey,  3  Florida,  41.  *  Ibid. 

-  Martin  v.  Lundie,  6  Ala.  427.  ^  Kyles  v.  Tait,  6  Gratt.  44. 

3  Glasscock  v.  Robinson,  13  Sm.  & 
M.  85. 

55* 


654  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

purchaser,  to  enforce  the  vendor's  lien.  The  "widow  sets  up 
in  defence  ;  1.  That  the  plaintiff  had  no  title,  and  the  pur- 
chaser had  consequently  abandoned  the  purchase ;  2.  That 
he  had  ^aid  the  purchase-money ;  3.  That  since  his  death  she 
had  acquired  a  title,  under  a  deed  of  trust  made  by  him. 
Held,  the  grounds  of  defence  were  inconsistent  with  each 
other,  and  that  the  plaintiff  was  entitled  to  enforce  the  lien.^ 

75.  Where  land  is  sold  under  authority  of  the  Orphans' 
Court,  and  a  part  of  the  price  remains  unpaid,  the  interest  of 
which  goes  to  the  widow  for  life,  remainder  to  the  heirs  ;  the 
lien  for  the  price  is  not  discharged  by  a  sheriff's  sale  under  a 
judgment  against  the  purchaser.  Hence,  all  prior  liens  are 
unaffected.^ 

76.  An  infant  purchaser  of  land  paid  a  part  of  the  price  ; 
in  a  suit  for  the  balance,  set  up  his  minority  as  a  defence, 
and  prevailed ;  and  after  coming  of  age  conveyed  the  land  to 
one  having  notice  of  all  the  facts.  Held,  the  vendor  retained 
a  lien  for  the  price,  and  might  enforce  it  in  equity  without 
restoring,  or  offering  to  restore  the  amount  received  by  him  ; 
although,  after  his  conveyance  to  the  infant,  but  before  the 
latter  had  avoided  it,  the  plaintiff  had  quitclaimed  the  land 
to  another  person.^ 

77.  Sale  of  several  lots  on  credit.  The  vendee  sold  two 
of  them  to  diflerent  purchasers,  the  first  vendor  agreeing  with 
one  of  them  to  release  his  lot  upon  payment  of  a  certain  sum, 
but  not  being  then  informed  that  the  latter  had  sold  to  a  sub- 
purchaser. The  vendor  obtained  a  decree  in  Chancery  for  a 
sale,  to  satisfy  his  lien,  and  assigned  the  decree.  Held,  the 
decree  charged  the  land  held  by  the  sub-purchaser,  notwith- 
standing the  above  arrangement  for  a  release  ;  and  could  not 
be  discharged  by  payment  of  a  sum  corresponding  with  what 
was  paid  under  this  arrangement,  taking  into  view  the  rela- 
tive value  of  the  two  lots.'* 

78.  A  vendee  gave  his  note  for  part  of  the  price  to  a  cred- 

1  Glasscock  v.  Eobinson,   13   Sm.  &        ^  Weed  v.  Beebe,  21  Vt.  495. 
M.  85.  *  Kirkscy  v.  Mitchell,  8  Alab.  402, 

'■^  Lauman,  8  BaiT,  473. 


CH.  XXIII.]      EQUITABLE   MORTfti.GES.  —  VENDOR'S   LIEN.  655 

itor  of  the  vendor,  who  gave  credit  to  the  vendor  for  that 
amount.  Upon  the  subsequent  failure  of  the  vendee,  the 
vendor  took  back  the  land  for  a  lower  price,  and  sold  it  to 
the  creditor,  also  for  a  lower  price  than  the  vendee  had  agreed 
for.  Held,  in  the  absence  of  an  express  agreement,  such 
creditor  had  no  lien  upon  the  land,  which  was  not  subordinate 
to  that  of  the  vendor.^ 

79.  A  vendee  sells  to  one  without  notice,  taldng  a  note  for 
the  price,  which  is  assigned  for  value,  before  the  maker  has 
notice  of  the  non-payment  of  the  original  consideration. 
Held,  the  vendor  could  not  assert  a  lien  against  him,  and 
that  the  assignee  was  entitled  to  payment  of  the  note, 
although,  after  notice  of  the  non-payment,  the  maker  said  he 
would  not  pay  his  note,  unless  he  were  made  safe.  Nor  will 
the  assignee's  right  to  retain  the  money  be  impaired,  by  his 
giving  the  maker  an  indemnity  as  an  inducement  to  pay  the 
note.2 

80.  Where  land  is  sold  under  articles,  and  the  vendor  after- 
wards sells  it  upon  a  judgment  for  the  price,  the  judgment 
purchaser  acquires  a  legal  title,  discharged  of  the  vendor's 
lien  for  the  purchase-money,  and  the  latter  is  entitled  to  pay- 
ment, in  preference  to  liens  prior  to  his  judgment  upon  the 
title  of  the  vendee.^ 

81.  A  vendor,  after  two  years  from  the  sale  of  the  land, 
took  other  secuiity,  and  conveyed  the  land  to  the  vendee  for 
the  express  purpose  of  enabling  him  to  raise  money  on  it  by 
mortgage.     Held,  the  vendor  thereby  lost  his  lien.* 

82.  A.,  a  trustee  under  a  decree  in  Chancery,  to  invest 
trust  funds,  agreed  with  B.,  the  surety  in  his  trust  bond,  to 
lend  him  a  part  of  the  trust  funds,  taking  a  mortgage  as 
security.  He  accordingly  advanced  half  of  the  sum  agreed, 
undertaking  to  apply  the  balance  to  pay  a  judgment  against 
B.  B.  subsequently  executed  a  mortgage  to  secure  the  whole 
amount.     A.  did  not  pay  the  judgment,  and  the  mortgage 

1  Colcord   V.   Seamonds,  6  B.  Mon.        ^  Horhach  v.  Riley,  7  Barr,  81. 

265.  ■*  Glower  v.  RawUngs,   9   Sm.  &  M. 

2  Houston  V.  Stanton.  11  Alab.  412.        122. 


656  THE   LAW   OF   HORTGAGES.  [CH.  XXIII. 

was  never  recorded,  nor  reported  to  the  Chancellor  for  ap- 
proval, but  was  returned  to  the  mortgagor  and  destroyed.  A. 
received  trust  money,  which  he  failed  to  invest,  and  was 
removed  from  office,  and  a  new  trustee  appointed.  The 
lands  were  sold  by  the  sheriff  to  the  defendant  for  one  twelfth 
part  of  the  amount  advanced  by  A.  to  B.,  subject  to  prior 
judgment  liens,  of  nearly  their  full  value.  The  cestuis  que 
trust  file  a  bill,  claiming  a  lien  on  the  lands.  Held,  the  bill 
could  not  be  maintained,  the  circumstances  not  proving  a 
certain,  distinct,  and  consummated  contract,  for  such  lien 
between  A.  and  B.^ 

,  83.  The  lien  wiU  be  barred  by  the  lapse  of  twenty  years  ; 
but  not  by  a  limitation  which  is  sufficient  to  bar  the  per- 
sonal claim  of  the  vendor.  An  acknowledgment,  that  the 
purchase-money  has  not  been  paid,  will  prevent  the  limitation.^ 

84.  The  mode  or  form  of  enforcing  a  vendor's  lien  for  the 
purchase-money,  seems  to  be  substantially  the  same  as  that 
of  enforcing  an  ordinary  mortgage ;  by  bill  in  equity  against 
the  vendee  or  those  claiming  under  him.  (d) 

85.  The  rule,  that  the  mortgagee  may  pursue  all  his  reme- 
dies at  once,  does  not  apply  to  a  vendor  having  a  bond  and 
equitable  lien  for  the  purchase-money .^ 

86.  Where  a  vendor,  who  has  merely  given  a  bond  for 
title,  brings  a  bill  to  enforce  his  lien,  he  need  not  join  as  a 
party  defendant  an  execution-purchaser  of  the  vendee's  in- 
terest, although  he  is  in  possession  ;  unless  he  is  also  owner 
of  the  vendee's  title  under  the  bond ;  the  execution  sale  having 
passed  nothing.^ 

87.  Where  a  vendor  seeks  to  subject  land  sold,  but  not 

1  Gill  V.  McAttec,  2  Md.  Ch.  255.  Driver  v.  Hudspeth,  16  Ala.  348;  Er- 

'■^  Lingan  v.  Henderson,  1  Bland,  282  ;  ving  v-  Beauchamp,  6  B.  Mon.  422. 

Magruder  v.  Peter,   11   Gill  &  J.  218;  =^  Barker  y.  Smark,  3  Bcav.  64. 

Moreton   v.  Harrison,    1    Bland,   491 ;  *  Driver  v.  Clark,  13  Ala.  192. 


{(1)  In  Indiana,  a  vendor  is  not  required  to  attach  the  property  of  the  ven- 
dee, though  he  has  absconded.  He  may  enforce  his  lien  in  equity.  Russell 
V.  Todd,  7  Blackf.  239. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  657 

conveyed,  to  payment  of  the  consideration,  the  Court  may 
order  him  to  exhibit,  by  a  certain  day,  a  sufficient  convey- 
ance, with  a  relinquishment  of  dower,  if  he  has  a  wife,  warn- 
ing the  vendee  to  deposit  in  Court,  on  the  same  or  a  succeed- 
ing day,  the  amount  due  ;  and  on  the  filing  of  such  conveyance, 
and  failure  to  make  the  requu'ed  deposit  or  payment,  to 
subject  the  land  to  sale.i 

87  a.  If-  a  vendor  has  a  lien,  and  a  mortgagee  under  the 
purchaser  brings  a  bill  to  foreclose,  the  Court  should  decree 
a  sale,  and  appropriate  the  proceeds,  first  to  the  payment  of 
the  lien,  and  next  of  the  mortgage.^ 

87  b.  Claim  by  an  equitable  mortgagee  against  the  mort- 
gagor, asking  for  a  sale,  and  that  other  mortgagees  might  be 
summoned  before  the  Master,  or  a  decree  made  to  ascertain 
what  mortgages  there  were  and  their  priorities.  Order 
refused.'^ 

88.  A  bill  to  enforce  a  lien  should  fully  describe  the  con- 
tract of  sale,  and  the  non-payment  of  the  price.'^ 

89.  The  usual  decree  in  a  suit  of  this  nature  is  for  a  sale 
of  the  land,  unless  the  debt  be  paid  by  a  certain  day.^  In 
justification  of  this  course  of  proceeding,  as  applied  to  a 
purchaser  from  the  first  vendee,  the  Court  in  Georgia  remark 
as  follows  :  — 

90.  "  The  title  to  his  land  has  been  vested  in  the  company 
by  operation  of  law.  The  corporation  having  complied 
strictly  with  the  provisions  of  its  charter,  he  cannot  maintain 
trespass  or  ejectment.  A  suit  upon  the  certificate  would  be 
wholly  unavailable,  owing  to  the  insolvency  of  the  company. 
He  is  consequently  wholly  remediless,  unless  equity  will 
interpose  for  his  relief,  by  decreeing  a  sale  of  the  property  for 
the  payment  of  the  purchase-money.  And  we  are  of  the 
opinion  that  he  is  entitled  to  this  relief.  Nor  will  this  judg- 
ment serve  in  the  least  to  impede  or  obstruct  the  great  enter- 

1  Clark  V.  Bell,  2  B.  Monr.  1.  »  Burgess  v.  Sturgis,  8  Eng.  Law  & 

-  Mosely  v.  Garrett,  1   J.  J.  Marsh.       Eq.  270. 
212.  *  Hough  V.  Canby,  8  Blackf.  301. 

&  Eskridge  v.  McClure,  2  Yerg.  84. 


658  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

prise.  The  present  proprietors,  who  bought  with  notice,  have 
only  to  pay  to  this  citizen  the  price  put  upon  his  property  by 
commissioners  appointed  for  that  purpose,  upon  their  own 
application."  ^ 

90  a.  A  decree  to  enforce  the  vendor's  lien  has  been  held 
erroneous,  if  it  does  not  name  a  day  for  the  appellants  to 
redeem  the  property .^ 

90  b.  So  also  is  a  decree,  directing  a  sale  for  cash,  instead 
of  allowing  a  reasonable  credit.^ 

91.  In  a  suit  to  enforce  his  lien,  the  vendor  of  land  will  be 
compelled  to  do  equity.  Hence,  if  the  vendee  bids  off  the 
land  upon  an  execution  sale  against  the  vendor,  issued  upon 
a  judgment  recovered  after  the  purchase,  he  shall  be  allowed 
the  amount  paid  to  the  officer.* 

92.  So,  the  principle  of  equitable  apportionment  of  the 
debt,  among  different  parcels  of  land  subject  to  one  incum- 
brance, is  held  applicable  to  the  lien  of  a  vendor.  It  is  said, 
"  There  is  no  difference  in  principle  between  the  lien  of  a 
vendor,  under  an  agreement  for  the  sale  of  land,  part  of  which 
is  subsequently  sold  by  the  vendee,  and  that  of  a  mortgage 
to  secure  the  purchase-money  after  a  conveyance  by  the  mort- 
gagor under  similar  circumstances.  In  either  case,  equity 
would  require  that  the  lien  should  be  satisfied  by  sale  of  the 
different  parcels  in  the  inverse  order  of  their  alienation."  ^ 

1  Per  Lumpkin,  J.,  Mims  v.  Macon,  *  Foreman  v.  Hardwiek,  10  Ala.  316 
&c.  3  Kelly,  342.  5  pgr  Gardiner,  J.,  Crafts  v.  Aspin- 

2  Kyles  V.  Tait,  6  Gratt.  44.  wall,  2  Comst.  291,  292. 

3  Alford  V.  Helms,  6  Gratt.  90. 


CH.  XXIV.]      EQUITABLE  MORTGAGES.  —  VENDEE'S   LIEN.  659 


CHAPTER    XXIV. 

EQUITABLE   MORTGAGES.      LIEN   OF   A   VENDEE   FOR  THE   PUR- 
CHASE-MONEY. 

1.  A  LIEN  has  been  sometimes  upheld,  which  is  the  pre- 
cise converse  of,  but  treated  as  analogous  to,  that  described  in 
the  last  chapter  ;  to  wit,  the  lien  of  a  purchaser^  who  has  paid 
the  purchase-money  punctually,  prematurely^  or  by  surprise, 
before  receiving  an  actual  conveyance.^ 

2.  Upon  this  subject  Judge  Story  remarks  as  follows  :  — 

3.  "  In  Burgess  v.  'Wheate,^  Sir  Thomas  Clarke,  M.  R.,  said, 
'  Where  a  conveyance  is  made  prematurely,  before  money 
paid,  the  money  is  considered  as  a  lien  on  that  estate  in  the 
hands  of  the  vendee.  So  where  money  was  paid  prematurely, 
the  money  would  be  considered  as  a  lien  on  the  estate  of  the 
vendor  for  the  personal  representatives  of  the  purchaser ; 
-which  would  leave  things  in  statu  quo^  Mr.  Sugden  seems  • 
to  have  doubted  whether  this  lien  exists  in  favor  of  the  ven- 
dee, who  has  paid  the  purchase-money.  For,  alluding,  as  it 
should  seem,  to  such  a  case,  he  says,  '  Where  a  lien  is  raised 
for  purchase-money  under  the  usual  equity  in  favor  of  a  ven- 
dor, it  is^or  a  debt  really  due  to  him,  and  equity  merely 
provides  a  security  for  it.  But  in  the  case  under  considera- 
tion, equity  must  not  simply  give  a  security  for  an  existing 
debt ;  it  must  first  raise  a  debt  against  the  express  agreement 
of  the  parties.  The  purchase-money  was  a  debt  due  to  the 
vendor,  which,  upon  principle,  it  would  be  difficult  to  make 
him  repay.     What  power  has  a  court  of  equity  to  rescind  a 


1  Payne   v.    Atterbury,    Harring.  Cli.    tual.  &c.  8   Cush.  132  ;   iEtna,   &c.  v. 
414.     See  Coote,  265;  Lowell  v.  Mu-     Tyler,  16  Wend.  385. 

2  1  W.  Bl.  150,  1  ed.  211. 


660  THE  LAW  OP  MORTGAGES.         [CH.  XXIV. 

contract  like  this  ?  The  question  might  perhaps  arise,  if  the 
vendor  was  seeking  relief  in  equity.  But  in  this  case  he  must 
be  a  defendant.  If  it  should  be  admitted  that  the  money 
cannot  be  recovered,  then,  of  course,  he  must  retain  the  estate 
also,  until  some  person  appears,  who  is  by  law  entitled  to 
require  a  conveyance  of  it.'  (Sugden  on  Vendors,  p.  258,  7th 
ed.)  Lord  Eldon  cited  the  same  position  of  Sir  Thomas 
Clarke,  in  his  very  words,  without  objection  or  observation,  in 
Mackreth  v.  Symmons,  15  Ves.  345.  And  afterwards,  in  the 
same  case,  p.  353,  he  used  language  importing  an  approval 
of  it.  '  This,'  said  he,  '  comes  very  near  the  doctrine  of  Sir 
Thomas  Clarke,  which  is  very  sensible,  that  where  the  con- 
veyance or  the  payment  has  been  made  by  surprise,  (meaning, 
it  is  supposed,  prematurely^  in  the  sense  of  Sir  T.  Clarke,) 
there  shall  be  a  lien.'  The  ground  asserted  by  Mr.  Sugden 
for  his  doubt,  does  not  seem  sufficient  to  sustain  it.  He 
assumes,  that  there  is  no  debt  between  the  parties,  which  is 
the  very  matter  in  controversy,  for  in  the  view  of  a  court  of 
equity,  the  payment  of  the  purchase-money  may  well  be 
deemed  a  loan  upon  the  security  of  the  land,  until  it  has  been 
conveyed  to  the  vendee.  At  least,  there  is  quite  as  much 
reason  to  presume  it,  as  there  is  reason  to  presume  the  land, 
when  conveyed,  to  be  still  a  security  for  the  purchase-money 
due  to  the  vendor.  In  the  latter  case,  though  there  is  a  debt 
due  by  the  vendee,  it  does  not  follow  that  it  is  a  debt  due  by 
the  land.  In  the  former,  if  the  estate  cannot  be  conveyed 
and  is  not  conveyed,  the  money  is  really  a  debt  di|e  to  the 
vendee.  At  all  events,  in  equity  it  is  not  very  clear,  what 
principle  is  impugned,  by  deeming  the  money  a  lien  upon  the 
ground  of  presumed  intention."  ^ 

3  a.  It  has  been  held,  that  in  case  of  a  bond,  conditioned 
to  give  a  title  on  payment  of  the  purchase-money,  equity 
views  the  transaction  as  in  the  nature  of  a  mortgage.^ 


1  2  Story's  Eq.  §  1217,  n.  4.     See  Ox-     low  v.  Grayall,  11   Price,  58;  Finch  v. 
enham  v.  Esdaile,  3  Y.  &  Jer.  264  ;  Liid-     Winchelsea",  1  P.  Wms.  282. 

-  Conner  V.  Jianks,  18  Ala.  42. 


CH.  XXIV.]      EQUITABLE   MORTGAGES. VENDEE' S   LlEN.  661 

S  b.  If  a  note  is  given  for  the  price,  an  assignment  of  such 
note  passes  the  lien  also.' 

3  c.  The  lien  will  not  be  lost,  by  extending  the  time  of 
payment,  and  taking  a  new  note  payable  directly  to  the 
assignee.2 

3  d.  So,  a  vendee  of  land  under  a  parol  contract,  though 
he  cannot  have  specific  performance,  may  enforce  a  lien  on 
the  land  for  the  purchase-money  and  his  improvements.^ 

3  e.  A  purchaser  of  land,  who  has  paid  part  of  the  pur- 
chase-money, but  has  only  a  bond  for  title  when  the  purchase- 
money  is  paid,  has  an  interest  which  he  may  convey 
absolutely  or  in  mortgage,  subject,  however,  to  the  first  ven- 
dor's lien.* 

3/.  Where  one,  having  only  a  bond  for  a  title,  transfers  it 
to  a  surety  for  the  purchase-money  ;  this  is  an  equitable 
mortgage,  which  may  be  foreclosed.^ 

3  g".  A.,  the  owner  and  keeper  of  a  hotel,  agreed  with  B., 
his  son-in-law,  to  sell  it  to  him,  and  assist  in  conducting  it, 
receiving  half  the  profits.  The  wife  of  B.  afterwards  assisted 
in  conducting  the  hotel.  B.,  not  having  the  funds  required 
for  the  business,  wrote  to  A.,  "  you  must  mortgage  or  sell  the 
premises."  He  afterwards  applied  to  A.  for  a  mortgage,  to 
secure  sums  claimed  by  him,  and  brought  an  action,  in  part 
for  the  services  of  his  wife.  A.  having  become  bankrupt,  B. 
files  a  bill  against  the  assignees,  praying  for  specific  perform- 
ance of  the  agreement,  or  that  he  might  be  declared  to  have 
a  lien  for  his  advances.  Held,  although  he  might  have  had 
a  lien  if  the  contract  had  failed  through  the  fault  of  A.,  such 
lien  was  defeated  by  his  own  abandonment  of  the  purchase.^ 

4.  In  the  case  of  Small  v.  Attwood,''  the  purchase-money 
was  followed  into  the  stock  in  which  the  vendor  had  invested 
it,  even  notwithstanding  a  transfer  to  a  third  person.     The 


1  Conner  v.  Banks,  18  Ala.  42.  5  Hayes  v.  Hall,  4  Port.  374. 

2  Ibid.  ^  Dunn  v.  Grant,  17  Eng.  Law  &  Eq. 
8  Brown  v.  East,  5  Morir.  405.                    526. 

*  Fenno  v.  Sayre,  3  Ala.  458.  "  1   Younge,  507. 

VOL.  I.  56 


662  THE  LAW  OF  MORTGAGES.        [CH.  XXIV. 

case,  however,  was  reversed  on  other  grounds,  and  has  been 
questioned.' 

5.  The  following  cases  seem  to  be  founded  upon  p^nciples 
somewhat  analogous  to  that  above  stated. 

6.  An  advance  of  money  to  a  mortgagee,  under  an  agree- 
ment that  the  mortgage  shall  be  assigned  to  the  lender, 
substitutes  the  latter,  in  equity,  in  place  of  the  former.^ 

7.  A  son  advanced  money  to  pay  off  a  mortgage  against 
his  mother ;  no  assignment  was  executed,  and  the  securities 
were  lost ;  but  the  title-deeds  were  found  in  his  hands.  Held, 
he  had  an  equitable  lien.^ 

8.  A  married  woman,  having  conveyed  land  by  a  defective 
conveyance,  represented  to  a  purchaser  from  her  vendee  that 
the  title  was  good,  and  thereby  induced  him  to  pay  out 
money.  After  her  death,  her  heirs  sought  to  avoid  the  con- 
veyance, and  eject  such  purchaser.  Held,  in  equity,  they 
were  bound  to  reimburse  the  sum  paid  by  him,  and,  being 
non-residents,  that  he  had  a  lien  upon  the  land  therefor.^  (e) 

1  Coote,  265  ;  Sug.  Vend.  281 .  *  Blackburn  v.  Pennington,  8  B.  Mon. 

'^  Rockwell  V.  Hobby,  2  Sandf.  Ch.  9.        217. 
3  Ibid. 


(e)  As  to  an  equitable  title  in  government  lands,  growing  out  of  a  payment 
of  the  purchase-money,  see  Regan  v.  Walker,  2  Chand.  (Wise.)  133.  As 
to  equitable  mortgages,  in  general,  see  Northrup  v.  Cross,  Law  Rep.  August, 
1853,  p.  232. 


CH.  XXV.]  REGISTRATION.  663 


CHAPTER   XXV. 

REGISTRATION   OF  MORTGAGES. 


1  General  requisition  of  registration 
in  the  United  States. 

3.  Xot  necessary  belioeen  the  parties, 
&c.  !  such  notice. 

4.  Operation  of  an  unrecorded  mort- 
gage, as  against  other  incumbrances. 


6.  Registration,  how  far  notice. 
12.  Not  necessary,  as  against  parties 
having  notice;    what    shall   constitute 


1.  In  the  foregoing  chapters,  incidental  reference  has  been 
often  made  to  the  registration  or  recording  of  mortgages,  as 
an  indispensable  requisite  to  their  perfect  validity  and  effect ; 
in  conformity  TAdth  the  prevailing  American  system  of  noto- 
riety in  the  title  to  real  property.  In  all  the  States,  express 
provision  is  made  for  the  recording  of  deeds ;  applying  as 
well  to  mortgages  as  to  absolute  conveyances.  The  plan  of 
the  present  work  does  not  include  a  statement  of  the  minute 
statutory  regulations  upon  this  general  subject,  but  only  of 
such  as  apply  specially  to  mortgages ;  which  are  compara- 
tively very  few. 

2.  Where  statutory  provisions,  as  to  the  recording  of  deeds 
generally,  differ  from  those  relating  specially  to  mortgages ; 
the  latter  shall  prevail.^ 

3.  In  general,  a  mortgage,  like  an  absolute  conveyance,  is 
valid  betiueen  the  parties.^  without  registration.^  (a)     So,  a 

1  Weed  V.  Lyon,  Barring,  Ch.  363.  126  ;  Andrews  v.  Burns,  11   Ala.  691 : 

'^  See  Salmon  r.   Clagett,  3   Bland,         Hartl.  Dig.  (Texas,)  83.5. 


(rt)  The  following  statutory  provisions  and  judicial  decisions  may  properly 
be  cited  under  this  head :  — 

In  Vermont,  where  the  assignee  of  a  mortgage  brings  a  bill  to  foreclose,  he 
need  not  aver  that  the  assignment  is  recorded.  King  v.  Harrington,  2  Aik. 
33.     See  Norton  v.  Stone,  8  Paige,  222. 


664  THE   LAW   OF  MOKTGAGES.  [CH.  XXV. 

mortgage  defectively  registered  is  a  good  equitable  mortgage, 
and  has  precedence  of  subsequent  judgments.^     So  an  unre- 

1  Bank,  &c.  v.  Carpenter,  7  Ham.  (1st  part)  21. 


The  registration  of  the  assignment  of  a  bond  and  mortgage  is  not  notice 
to  the  mortgagor  of  the  assignment.  Reed  v.  Marble,  10  Paige,  Ch.  409; 
Wolcott  V.  SulHvan,  1  Edw.  Ch.  399. 

In  Pennsylvania,  an  act  of  1715  provided,  that  any  mortgage,  or  defeasible 
deed  in  the  nature  of  a  mortgage,  should  be  invalid,  unless  recorded  in  six 
months  from  its  date.  By  an  act  of  1820,  mortgages  take  effect  in  the  order 
of  registration ,  except  those  given  back  to  secure  the  price  of  the  land  con- 
veyed, for  the  recording  of  which  sixty  days  are  allowed.  A  mortgage, 
though  not  recorded  within  six  months,  has  been  held  valid  against  the  mort- 
gagor and  a  purchaser  with  notice,     2  Hill.  of4  R.  P.  448. 

In  Delaware,  mortgages  lodged  for  registry  at  the  same  time  have  priority 
according  to  their  dates ;  if  made  for  the  purchase-monej',  sixty  days  are 
allowed  for  recording.  lb.  449.  Priority  is  according  to  the  date  of  registry. 
Dela,  Rev.  Sts.  269.  A  mortgage  for  the  price,  if  recorded  in  sixty  days, 
has  precedence  of  a  judgment.    !!• 

In  Arkansas,  a  mortgage  gives  no  lien  till  filed  for  record.     Ark.  L.  745. 

In  North  Carolina,  a  mortgage  is  void  against  creditors  or  purchasers,  un- 
less proved  or  recorded,  like  other  deeds,  within  six  months.  As  against 
such  creditors,  &c.,  a  title  passes  only  from  registry.  A  mortgagee  in  an 
unrecorded  mortgage  may  redeem  one  which  is  recorded ;  but  the  mortgagor 
loses  his  right  of  redemption.  2  Hill,  on  R.  P.  459. 

As  to  the  law  in  Maryland,  see  Pannell  v.  Farmers',  &c.  7  Har.  &  J.  202. 

In  Ohio,  a  mortgage  takes  effect  either  in  law  or  equity  only  from  the  time 
it  is  left  for  record.  The  statute  makes  the  recording  a  part  of  the  execu- 
tion. Doe  V.  Bank,  &c.  3  McLean,  140 ;  Holliday  v.  Franklin,  &c.  16  Ohio, 
533;  Brown  v.  Kinkman,  1  Ohio,  State  R.  116  ;  White  t'.  Denman,  lb.  110  ; 
Magee  ?'.  Beatty,  8  Ilam.  396.  A  prior  unrecorded  mortgage  is  postponed 
to  a  subsequent  recorded  one,  though  the  second  mortgagee  had  notice. 
Stansell  v.  Roberts,  13  Ohio,  148;  Mayham  v.  Coombs,  14,  408. 

In  ]\Iississippi,  mortgages  recorded  more  than  three  months  after  execu- 
tion, take  effect  from  their  delivery  to  the  recorder.  Missis.  Rev.  C.  453, 
454.  Of  two  deeds  delivered  to  the  recorder  on  the  same  day,  the  one  first 
executed  has  priority.  lb.  The  Statute  of  Mississippi,  giving  validity  to 
mortgages  upon  delivery  for  registry,  docs  not  apply  to  mortgages  executed 
out  of  the  State  of  property  out  of  the  State.  Prcwctt  i'.  Dobbs,  13  Sm.  & 
M.  431. 

In  Indiana  and. Texas,  a  mortgage  shall  be  recorded  in  ninety  days  from 


CH.  XXV.]  REGISTRATION.      '  665 

corded  mortgage  has  been  held  to  take  precedence  of  a  sub- 
sequent judgment.'  Especially  if  not  docketed.^  So,  as 
against  one  afterwards  taking  the  property  as  security  for 
an  existing  debt.^  But  if  the  land  should  be  sold  by  the  sheriff 
under  the  judgment,  prior  to  the  registry  of  the  mortgage,  a 
bond  fide  purchaser  would  be  protected  against  the  mortgage^ 
■^  Otherwise  in  South  Carolina.^  But  a  mortgage,  not  legally 
recorded  within  the  time  prescribed  by  law,  is  invalid  against 

1  Sclimidt  V.  Hayt,  1  Eclw.  Ch.  652.  *  Tiithill  v.  Dubois,  4  John.  216. 

2  Tuthill  V.Dubois,  4  John.  216.  5  Ash  v.   Ash,   1    Buy,  304  ;  Ashe  v. 

3  Manhattan,    &c.    i-.    Evertson,    6  Livingston,  2  Bay,  84  ;  Penman  v.  Hart, 
Paige,  457.  251. 


its  execution  ;  otherwise  it  is  deemed  fraudulent  and  void  against  a  subse- 
quent mortgagee  or  purchaser,  unless  recorded  before  the  deed  of  the  latter. 
2  Hill.  4G0  ;  Hartl.  Dig.  834,  835. 

In  North  Carolina,  a  mortgage,  not  recorded  seasonably,  is  invalid  against 
purchasers  subsequent  to  the  mortgage,  whose  conveyances  are  recerded 
before  the  mortgage.  Cowan  v.  Green,  2  Hawks,  384.  So  with  executions 
issued  prior  to  registration.  Davidson  v.  Beard,  2  Hawks,  520.  See  Pike  v. 
Armstead,  1  Dev.  Ch.  110  ;  Fleming  v.  Burgin,  2  Ired.  Ch.  584. 

Under  the  pi-oviso  of  the  Pennsylvania  statute  of  March  28,  1820,  mort- 
gages given  for  the  price  of  the  lands  mortgaged  are  liens  from  the  time  of 
their  execution,  if  recorded  within  sixty  days  therefrom.  Bratton,  &c.  8 
Barr,  1G4. 

In  Kentucky,  a  mortgage  is  invalid  against  creditors,  unless  acknowledged 
and  deposited  for  record  within  sixty  days  from  its  execution.  Stephens  v. 
Barnett,  7  Dana,  257.  If  proved  or  acknowledged,  and  recorded  within 
sixty  days,  a  mortgage  proves  itself     Bibb  v.  Williams,  4  Monr.  579. 

As  to  registration  in  Michigan,  see  Beals  v.  Hale,  4  How.  U.  S.  37 ;  Thomp- 
son V,.  Mack,  Harring.  Ch.  150. 

In  South  Carolina,  a  mortgage  is  good  against  subsequent  judgment  cred- 
itors, without  registration  or  notice.  Coleman  v.  Bank,  &c.  2  Strobh.  Eq. 
285.  See  Ross  v.  Bank,  &c.  3  Strobh.  Eq.  245. 

A  mortgage,  executed  and  delivered  before  a  general  assignment  of  the 
mortgagor  for  creditors,  though  not  recorded  till  after,  takes  precedence  of 
such  assignment.     WyckofFr.  Remsen,  11  Paige,  564. 

Non-registry  of  a  separate  declaration  of  the  trusts  of  a  mortgage  does  not 
affect  it,  except  as  to  such  trusts.     Skinner  v.  Cox,  4  Dev.  59. 

As  to  the  law  in  Alabama,  Herbert  v.  Hanrick,  16  Ala.  581  ;  Harbrison  v. 
Harrell,  19  Ala.  753. 

56* 


666  THE   LAW   OF   MOKTGAGES.  [CH.  XXV. 

a  trustee  for  creditors.^     Scire  facias  lies  upon  a  mortgage, 
though  improperly  recorded.^ 

4.  In  general,  a  subsequent  mortgage,  duly  recorded,  to  a 
party  having  no  notice  of  the  former  one,  has  precedence  of 
such  prior  mortgage.^ 

4  a.  Where  three  mortgages  were  successively  made,  at 
the  same  time,  of  the  same  property,  by  the  same  person, 
and  handed  in  this  order  to  the  register ;  held,  the  first  had 
priority.^ 

4  &.  A  person  holding  the  legal  title  to  land,  in  trust  for 
his  father,  sold  the  land,  at  the  request  of  the  father,  and 
took  two  mortgages  upon  the  land  for  the  purchase-money, 
one  for  the  portion  of  the  purchase-money  belonging  to  the 
father,  and  the  other  as  a  compensation  to  an  agent  for  effect- 
ing the  sale.  Both  mortgages  were  executed  to  the  son  at 
the  same  time,  but  with  the  understanding  that  the  mort- 
gage for  the  benefit  of  the  father  was  to  take  precedence, 
and  it  was  recorded  fifteen  minutes  earlier  -fcan  the  other, 
for  the  benefit  of  the  agent ;  but  the  latter  was  assigned  to 
the  agent,  before  the  assignment  of  the  former  to  the  father. 
Held,  that  the  father's  mortgage  was  entitled  to  priority, 
there  having  been  no  intervening  bond  fide  purchase  from  the 
agent.^ 

4  c.  If  a  first  mortgagee  agrees  by  a  sealed  instrument 
with  a  second  mortgagee,  that  the  second  mortgage  shall 
have  priority  ;  this  will  give  it  such  priority,  though  the  reg- 
istry remain  unchanged.^ 

4  d.  Separate  mortgages  were  made  on  the  same  day  to 
two  mortgagees.  One  of  them  was  entered  for  record  a 
short  time  before  the  other,  but  on  the  same  day.  The  first, 
being  in  possession  under  his  deed,  acknowledged  in  writing 
that  the  mortgages  were  concurrent,  and  that  his  was  first 
recorded  by  mistake.     He  afterwards  conveyed  to  a  third 

1  Bank,  &c.  v.  Herbert,  8  Cranch,  36.        *  Naylor  v.  Throckmorton,  7  Leigh, 
^  Sohns  I'.  McCulloch,  5  Barr,  473.         98. 

•^  Pomet    V.    Scranton,    AValk.    406  ;         ^  Douglass  v.  Pecle,  1  Clark,  563. 
Clabaugh  v.  Byerly,  7  Gill,  354.  «  New  York,  &c.  v.  Peck,  2  Halst. 

Ch.  37. 


CH.  XXV.]  REGISTRATION.  667 

person.  Held,  such  writing,  though  not  recorded,  was  ad- 
missible .evidence  against  such  third  person.^ 

4  e.  1  trustee,  having  two  sums  of  money,  belonging  to 
different  cestins,  loaned  both  to  one  person  at  the  same  time, 
and  took  separate  mortgages  upon  the  same  premises  as 
security,  not  intending  to  give  priority  to  either  over  the  other; 
but  one  was  received  by  the  clerk  for  registry  shortly  before 
the  other.  The  premises  being  sold,  and  the  proceeds  in- 
sufficient to  pay  both  debts ;  held,  the  two  should  be  paid 
rate  ably  .2 

4/.  Contract  to  sell  certain  land  for  $200.  The  vendee 
transferred  his  interest  for  $100,  of  which  $10  was  paid. 
Thereupon  the  vendor,  at  the  request  of  the  vendee,  conveyed 
the  land  to  the  assignee,  who  mortgaged  to  the  vendor  for 
$200,  and  to  the  vendee  for  $90.  The  latter  mortgage  was 
recorded  two'hours  earlier  than  the  former,  and  was  assigned 
by  the  mortgagee  for  valuable  consideration,  without  notice. 
On  a  bill  by  the  assignee  of  the  mortgage  to  the  vendor  to 
foreclose  that  mortgage,  it  was  held,  that  the  vendee's  as- 
signee should  be  protected  as  a  bond  fide  purchaser,  and  his 
mortgage,  being  first  recorded,  should  have  priority  over  the 
vendor's.^ 

5.  A  mortgage  first  recorded  has  priority,  although  the 
prior  mortgagee,  whose  deed  is  subsequently  recorded,  fore- 
closes, and  himself  purchases  the  estate,  the  other  mortgagee 
not  being  made  party  to  the  suit*  So,  the  purchaser  on  the 
foreclosure  of  an  unregistered  mortgage  is  not  such  a  bond 
fide  purchaser,  as  to  overreach   a  conveyance  by  the  mort- 

agor  to  a  bond  fide  purchaser  after  the  mortgage,  and  before 
foreclosure,  who  was  in  possession  at  the  time  of  the  fore- 
closure and  sale.^  (&)     So,  a  bond  fide  purchaser  will  be  pro- 

1  Beers  v.  Hawlev,  2  Conn.  467.  *  Taylor  v.  Thomas,  1  Halst.  Ch.  331. 

2  Rhoades  v.  Canfield.  8  Paige,  545.  °  Hawlev  v.  Bennett,  5  Paige,  C.  R. 
8  Corning  r.  Murray,  3  Barb.  652.              104. 


(b)  Pending  a  suit  for  foreclosure,  the  mortgagee  assigned  an  interest  in 
the  mortgage,  -which  assignment  was  recorded ;  and,  upon  a  sale  of  the 


668  THE   LAW    OF   MORTGAGES.  [CH.  XXV. 

tected  against  a  prior  unregistered  mortgage,  though  the 
mortgage  is  subsequently  registered  before  the  registration  of 
the  deed  to  the  purchaser.^ 

6.  In  general,  the  recording  of  a  mortgage  is  notice  both 
of  the  debt  and  the  lien  to  all  parties.  But  without  legal 
acknowledgment  or  proof,  it  is  a  nullity.'^  The  record  of  an 
unsatisfied  mortgage  is  sufficient  to  put  a  third  person  upon 
inquiry;  and  whatever  puts  a  person  upon  inquiry  is,  in 
equity,  notice  to  him  of  all  the  facts  which  such  inquiry 
would  have  disclosed.^ 

7.  But  where  a  person  mortgages  lands  which  he  holds 
under  a  bond  for  a  deed,  he  conveys  thereby  no  legal  inter- 
est in  the  bond,  but  only  an  equitable  interest ;  and  the  reg- 
istry of  such  mortgage  is  notice  to  no  one.*  So,  a  mortgage 
without  seal  or  scroll  is  not  constructive  notice  to  subse- 
quent purchasers  and  creditors,  though  on  record ;  yet  it 
transfer^  an  equity  to  the  mortgagee,  and,  being  prior  to  a 
mere  covenant  to  mortgage,  must  prevail  against  such  cove- 
nant, with  or  without  notice.^ 

7  a.  Deed  with  a  schedule  annexed,  describing  the  prop- 
erty, as  "  land,  the  title  to  which  is  in,  &c.  given  as  collateral 
security,  to  pay  certain  notes."  The  mortgage  was  not  re- 
corded. Held,  the  mortgage  should  have  priority  of  the 
deed.^ 

1  Hawley  v.  Bennett,  5  Paige,  C,  R.  Cli.  319  ;  Dean  v.  De  Lezardi,  24  Miss. 
104.  424. 

2  Work    I'.    Harper,    24    Miss.    517.  s  Bolles  u.  Chauncey,  8  Conn.  389. 
See    Peters    v.    Goodrich,    3     Conn.  *  Wing  w.  McDowell,  Walk.  Ch.  175 ; 
146;    Quinebaug,    &c.   v.    French,    17  Farmers',  &c.  u.  Maltby,  8  Paige,  361. 
Conn.  129;  Mix  u.  Hotchkiss,  14  Conn.  But    see    Parkhurst    v.   Alexander,    1 
33;  Miller  v.  Helm,  2   Sm.  &  M.  687  ;  Johns.  Cli.  394. 

Copeland  ;;.  Copeland,  28  Maine,  525  ;         ^  Portwood  v.  Outton,  3  B.  Mon.  247. ( 
Knickerbacker  v.  Boutwell,   2    Sandf.        ^  Dunham  v.  Dey,  15  Johns.  556. 


premises,  under  flie  decree  of  foreclosure,  he  became  the  purchaser ;  where- 
upon certain  judgment  creditors  levied  upon  the  land,  and,  at  the  sheriff's 
sale,  became  the  purchaMrs.  Held,  in  the  absence  of  any  allegation  to  the 
contrary,  such  creditor^*  would  be  presumed  to  hare  purchased  in  good  faith, 
without  notice  that  the  assignee  had  not  received  his  share  of  the  purchase- 
money,  under  the  foreclosure.    Norton  v.  Stone,  8  Paige,  222. 


CII.  XXV.]  KEGISTRATION.  669 

lb.  If  a  registered  mortgage  mentions  the  bond  intended 
to  be  secured  by  it,  though  not  its  contents ;  this  is  sufficient 
notice  to  subsequent  purchasers.^ 

7  c.  Registration  is  notice  to  a  subsequent  purchaser  from 
the  mortgagor,  though  the  mortgagee  neglect  for  ten  years  to 
claim  under  the  mortgage,  and  the  mortgagor  has  in  the 
mean  time  become  insolvent.^ 

7  d.  The  record  of  a  mortgage  is  sufficient  notice,  though 
not  mentioned  in  the  alphabet  or  index.-^ 

1  e.  Actual  notice  of  the  amount  secured  by  a  mortgage 
is  binding  upon  a  subsequent  purchaser,  though  there  be  a 
mistake  in  the  register.* 

If.  But  where  there  is  a  mistake  in  the  registry  of  a 
mortgage,  as  to  the  amount  secured  by  the  mortgage,  the 
registry  is  notice  only  to  the  extent  expressed  in  the  registry .^ 

8.  The  inscription,  in  the  office  of  the  recorder  of  mort- 
gages, of  any  act  which  gives  notice  to  third  persons  of  a 
mortgage,  fulfils  the  object  of  the  law ;  and  the  notice  is 
equally  binding,  whether  derived  from  the  inscription  of  the 
order  appointing  the  tutor  or  curator,  from  the  certificate  of 
his  appointment,  or  from  the  bond.^ 

9.  The  record  of  a  conveyance  of  land  in  mortgage,  which 
on  the  records  appears  to  be  the  land  of  the  mortgagee,  is 
not  notice  of  a  prior  conveyance  thereof  from  the  mortgagee 
to  the  mortgagor." 

10.  A  mortgagee  need  not  notice  liens  or  interests  ac- 
quired subsequent  to  the  recording  of  the  mortgage,  unless 
actually  notified  ;  the  registration  of  a  subsequent  mortgage 
is  not  enough.^ 

11.  In  Bushell  v.  Bushell,^  Lord  Redesdale  says :  —  "  It  is 
true,  the  registry  is  considered  as  notice  to  a  certain  extent ; 
no  person  thinks  of  purchasing  an  estate  without  searching 

1  Pike  V.  Collins,  33  Maine,  38.  ^  Sauvcraet  v.  Landreaux,  1  La.  Ann. 

2  Dick  V.  Bakh,  8  Pet.  30.  Rep.  219. 

3  Curtis  V.  Lyman,  24  Verm.  338.  '  Pierce  v.  Taylor,  10  Shepl.  24G. 

*  Frost  V.  Beekman,  1  Johns.  C.  R.  ^  King  v.  McVickar,  3  Santlf.  Ch. 
288.  192. 

6  ibid.  9  1  Sch.  &Lef.  103. 


670  THE  LAW   OF   MORTGAGES.  [CH.  XXV. 

the  registry  ;  and  if  he  searches,  he  has  notice  ;  but  I  think 
it  cannot  be  notice  to  all  intents,  on  account  of  the  mis- 
chiefs that  would  arise  from  such  a  decision.  For  if  it  is  to 
be  taken  as  constructive  notice,  it  must  be  taken  as  notice  of 
every  thing  that  is  contained  in  the  memorial ;  if  a  memorial 
contains  a  recital  of  another  instrument,  it  is  notice  of  that 
instrument ;  if  of  a  fact,  it  is  notice  of  that  fact."  In  another 
case '  he  remarks :  —  "If  it  be  notice,  it  must  be  notice, 
whether  the  deed  be  duly  registered  or  not ;  it  may  be  un- 
duly registered  ;  and  if  it  be  so,  the  act  does  not  give  a  pjef- 
erence ;  and  thus  this  construction  would  avoid  all  the  pro- 
visions in  the  act  for  complying  with  its  requisites."  '^ 

12.  In  general,  a  subsequent  mortgagee,  having  notice  of 
the  prior  mortgage,  though  not  recorded,  takes  subject  there- 
to.^ So,  though  he  forecloses  his  own  mortgage  and  himself 
purchases  the  land  at  the  sale.^ 

13.  The  general  principle  upon  this  subject  is,  that  regis- 
tration is  a  substitute  for  livery  of  seizin;  and,  if  the  notori- 
ety intended  to  be  effected  by  both  of  these  ceremonies  is 
otherwise  attained,  registration  is  unnecessary.  Upon  this 
ground,  not  only  is  an  unrecorded  mortgage  good  against 
the  grantor  and  his  heirs,  but  also  against  a  second  purchaser, 
mortgagee  or  attaching  or  levying  creditor,  who  has  actual 
or  presumptive  notice  of  the  first  mortgage  ;  such  party  him- 
self being  deemed  guilty  of  a  fraudulent  act.  The  same 
r-ule  applies  to  a  purchaser  with  notice  from  such  grantee. 
But  a  second  purchaser,  &c.,  with  notice,  will  acquire  a  good 
title  against  the  first  purchaser,  after  waiting  a  reasonable 
time  for  the  mortgagee  to  record  his  deed ;  because  he  may 
fairly  presume  that  in  some  way  the  estate  has  been  restored 
to  the  grantor.  Open,  peaceable,  and  exclusive  possession 
by  a  grantee  is  primd  facie,  but  not  conclusive,  evidence  of 


1  Latouche  v.  Lord  Dunsanv,  1  Sch.  409;    Solms  v.  McCiilloch,  5  Barr,  473; 

&  Lef.  157.  "  Allen  v.  ]\Ionti,roinery,  &c.  11  Ala.  437  ; 

^  Sec  also  Underwood  v.  Lord  Cour-  Copdand  v.  Cojieland,  28  Maine,  525; 

town,  2  Sell.  &  L.  64.  Woodworth  ?'.  Goodman,  1  Cali.  203. 

3  See  Sparks  v.  State  Bank,  7  Blackf.         *  Harris  v.  Norton,  10  Barb.  264. 


CH.  XXV.]  REGISTRATION.  671 

notice  to  the  subsequent  purchaser.  In  case  of  a  deed  and 
defeasance  back,  notice,  in  order  to  have  any  effect,  must  be 
notice  of  such  facts  as  constitute  the  transaction  a  mortgage.^ 
It  is  said,  the  notice  which  will  bind  a  purchaser,  &c.  must 
be  either  positive  or  implied.  It  is  not  sufficient,  that  the 
party  is  thereby  put  upon  inquiry,  or  that  there  is  a  mere 
suspicion  of  notice.2 

13  a.  An  unregistered  mortgage  is  valid  in  the  State 
where  the  property  is  situated,  against  a  purchaser,  with 
notice,  though  executed  in  another  State.^  But  the  fact  of 
execution  in  another  State  does  not  dispense  with  the  gen- 
eral necessity  of  registration.* 

13  b.  A.  mortgaged  land  to  B.,  and  afterwards  released 
his  equity  of  redemption,  by  deed  in  fee  duly  recorded,  and 
took  a  bond  for  reconveyance  ;  but  the  bond  was  not  record- 
ed. B.  assigned  the  mortgage  to  C,  ;  but  the  assignment 
was  not  recorded,  and  was  unknown  to  D.,  who  purchased 
of  B.,  after  the  assignment,  but  in  good  faith,  and  for  valu- 
able consideration.  Held,  that  D.  took  the  land  discharged 
of  the  mortgage.^ 

13  c.  A.  conveyed  to  B.,  taking  a  mortgage  for  the  price, 
which  was  not  recorded  within  sixty  days.  B.  then  con- 
veyed to  C,  taking  a  mortgage  for  the  price,  which  he  fore- 
closed by  a  sale  of  the  premises,  being  himself  the  purchaser, 
through  an  agent.  B.  afterwards  quitclaimed  all  his  title  to 
D.,  who  had  no  actual  notice  of  A.'s  mortgage.  Held,  D. 
took  subject  to  A.'s  mortgage.^ 

14.  If  land  is  conveyed  and  immediately  mortgaged  back 
for  the  price,  and  the  mortgagee  remains  in  possession, T)ut 
neither  deed  nor  mortgage  is  recorded ;  such  mortgage  shall 
have  priority  of  a  subsequent  mortgage,  duly  recorded.' 

1  2  Hill,  on  R.  P.  430-432/  *  Ilparing  v.  Lightfoot,  16  Ala.  28. 

2  Fort  I'.  Burch,  6  Barb.  60  ;  Fleming  ^  Mills  v.  Comstock,  5  Johns.  C.  R. 
V.  Burgin,    2    Ircd.    Ch.    584;    Gill    v.     214. 

M'Attee,  2   Mil.  Ch.    255.     See  Ohio,  »  Smith  v.  Mobile.  &c.,  21  Ala.  125. 

&c.  V.  Ross,   2  Md.   Ch.    25  ;    Dav   v.  '  McKecUnie  v.  Hoskins,   10    Shepl. 

qjlMk,  25  Verm.  397.                         "  230. 
^Bearing  v.  Watkins,  16  Ala.  20. 


672  THE   LAW   OP   MORTGAGES.  [CH.  XXV. 

15.  Where  a  mortgage,  with  power  of  sale,  is  not  recorded 
till  after  a  judgment  entered  against  the  mortgagor;  the 
judgment  creditor,  purchasing  under  the  judgment,  has  a 
better  title  than  a  purchaser  under  the  power  ;  even  though, 
it  seems,  he  had  notice  of  the  mortgage  before  his  judgment 
was  entered.^ 

16.  Registration  affects  only  a  subsequent,  not  a  prior 
mortgagee,  &c.2 

17.  Where  one  who  has  contracted  to  sell  land  gives  a 
mortgage  of  it,  the  tenant  of  the  purchaser  being  at  the  time 
in  possession ;  this  is  constructive  notice  to  the  mortgagee 
of  the  sale,  and  he  is  bound  thereby.^ 

17  a.  Pendency  of  a  foreclosure  suit,  after  service,  is  suffi- 
cient notice  of  the  mortgage.^ 

17  b.  If  a  mortgage,  duly  recorded,  recite  that  the  premises 
are  the  same  this  day  conveyed  by  the  mortgagee  to  the 
mortgagor,  and  now  reconveyed  to  secure  the  purchase- 
money  ;  this  is  sufficient  notice  of  the  deed  to  aU  claiming 
under  the  mortgagee.^ 

18.  In  Georgia,  the  4th  section  of  the  act  of  1827,  relating 
to  the  recording  of  deeds  and  mortgages,  does  not  give  pri- 
ority to  a  subsequent  recorded  mortgage,  with  notice  of  a 
prior  unregistered  lien.^ 

19.  To  charge  a  party  with  notice  of  an  unrecorded  mort- 
gage, the  notice  need  not  be  of  the  date  or  amount,  but  only 
of  an  existing  lien  of  a  certain  description  by  a  certain 
party." 

19  a.  Where  a  recorded  mortgage  is  discharged  by  one 
not  the  mortgagee,  a  subsequent  incumbrancer  is  bound  to 
inquire  into  his  authority,  and  chargeable  with  such  facts  as 
he  might  learn  by  proper  inquiry.^ 

20.  Conveyance  for  a  certain  sum,  with  an  agreement  be- 

1  Ilulings  V.  Guthrie,  4  Barr,  123.  ^  Center  v.  P.  &  M.  Bank,  22  Ala. 

^  Truscott  V.  Kinj,',  6  Barb.  346.  743. 

3  Bank,  &c.   v.  Flagg,  3  Barb.   Ch.        «  Neal  v.  Kerrs,  4  Geo.  161. 
316  ;  Braman  v.  Wilkinson,  3  Barb.  1.51.        ^  jj^rr  v.  Kinard,  3  Strobh.  73. 

*  Hoole  V.  Attorncy-Gcncralj  22  Ala.        **  Swarthout  v.  Curtis,  1  Seld.  SOlA 
190. 


CH.  XXV.]  REGISTRATION.  678 

tween  the  parties  and  a  third  person,  that  a  part  of  it  should 
be  paid  down,  he  furnishing  such  part  to  the  grantee,  and 
that,  as  security  therefor,  he  should  receive  a  first  mortgage 
from  the  grantee,  to  be  recorded  prior  to  the  mortgage  to 
the  grantor  for  the  balance  of  the  purchase-money ;  which 
was  accordingly  done.  The  grantor  assigned  his  mortgage, 
and  at  the  time  of  assignment  a  certificate  of  the  county 
clerk  was  shown  to  the  assignee,  stating  that  the  mortgage 
assigned  was  the  first  and  only  mortgage  on  record.  Held, 
the  mortgage  given  to  the  party  who  advanced  the  money 
should  have  priority.' 

21.  A  first  mortgage  was  not  recorded,  but  a  second  mort- 
gage of  the  same  property  was  recorded,  the  mortgagee  hav- 
ing notice  of  the  former  incumbrance.  The  second  mort- 
gagee assigned  his  mortgage  to  one  having  no  notice  of  the 
first,  but  the  assignment  was  not  recorded.  The  assignee 
foreclosed,  not  making  the  holder  of  the  first  mortgage  a 
party.  The  purchaser  at  the  Master's  sale  had  notice  of  the 
first  mortgage,  and  recorded  his  deed.  Held,  the  first  mort- 
gage should  have  precedence  of  the  title  of  such  purchaser.^ 

22.  Bill  in  equity  by  the  holder  of  a  subsequent  mort- 
gage, against  the  holder  of  a  prior  mortgage,  but  subsequently 
recorded.  The  bill  alleged,  that  the  plaintiff  had  no  notice 
of  the  defendant's  mortgage ;  and  the  answer,  that  the  de- 
fendant "  had  always  understood  and  believed "  that  the 
plaintiff"  had  notice.  Upon  a  hearing  on  bill,  answer,  and 
replication,  a  decree  was  rendered  for  the  plaintiff".^ 

23.  K  a  mortgage  is  made  without  consideration,  and 
transferred  to  a  bond  fide  purchaser,  and  the  mortgagors  then 
convey  to  a  bond  fide  purchaser,  without  notice  of  the  mort- 
gage ;  the  assignee  of  the  mortgage  will  hold.* 

24.  If  an  estate  is  devised  subject  to  debts  and  legacies, 
and  a  mortgagee  has  notice,  from  the  nature  of  the  transac- 


1  Lovett  V.  Demarest,  1  Halst.  Ch.  113.  »  Taylor  v.  Thomas,  1  Halst.  Ch.  331 . 

2  Fort  y.'Burch,  5  Denio,  187,  (Whit-  *  Andrew  Newport's  case,  Caa.  Temp. 
tlesey,  J.,  dissented.)  Holt,  477  ;  Skin.  423. 

VOL.  I.  57 


6T4  THE   LAW    OF   MORTGAGES.  [CH.  XXV. 

tion,  that  the  money  advanced  by  him  is  not  to  be  applied 
for  the  purposes  of  the  trust,  he  v^ill  take  subject  to  the  charge. 
But  notice  that  the  debts  have  been  satisfied,  will  not  render 
him  liable,  if  any  part  of  the  trust  remains  to  be  performed ; 
the  purchaser's  exemption  depending  upon  the  state  of  things 
at  the  testator's  death,  and  not  being  changed  by  subsequent 
events.^ 

25.  In  Jones  v.  Smith,^  it  was  held,  that  the  doctrine  of 
constructive  notice  applies  in  two  cases ;  first,  where  the 
party  has  had  actual  notice  that  the  land  is  in  some  way 
charged  or  incumbered,  and  has  therefore  been  held  by  an 
implied  knowledge  of  facts  and  instruments,  to  a  knowledge 
of  which  he  would  have  been  led  by  an  inquiry  after  such 
charge  or  incumbrance.  Second,  where  the  party  has  ab- 
stained from  inquiry,  for  the  very  purpose  of  avoiding  notice. 
In  a  subsequent  case,^  gross  negligence,  in  reference  to  a 
knowledge  of  the  prior  incumbrance,  has  been  held  to  be 
equivalent  to  fraud.* 

26.  In  Fuller  v.  Bennett,^  after  negotiations  extending 
over  five  years,  an  estate  was  purchased,  and  nearly  two 
years  after  such  purchase  mortgaged  by  the  purchaser.  The 
solicitor  of  the  purchaser  in  making  the  purchase  was  solici- 
tor of  both  parties  in  making  the  mortgage,  and  during  the 
treaty  for  a  purchase,  he  had  notice  of  an  incumbrance. 
Held,  such  notice  charged  the  mortgagee.  But  a  client  is 
not  affected  with  notice  of  a  fraud  which  the  solicitor  him- 
self has  practised  with  respect  to  the  title,  unless  the  client 
would  have  had  constructive  notice  of  it  through  the  solici- 
tor, if  practised  by  a  third  person.^ 

27.  If  the  parties  employ  one  attorney,  the  mortgagee 
will  be  charged  by  notice  to  him,  even  though  the  sale  was 
made  under  the  direction  of  the  Court,  and  the  purchase 

1  Coote,  447.  Jones  v.  Smith,  1  Phill.  255;  Stcedman 

'■i  1  llare,  43.  v.  Poole,  6  Hare,  19.3  ;  Taylor  v.  Baker, 

3  West  V.  Rcid,  2  Hare,  249.  5  Price,  306. 
*  See  Whitbread  v.  Jordan,  1   Y.  &        &  2  Hare,  394. 
Col.  (Exch.)  303  j  Sugd.  Vend.  1054;        "  Kennedy  v.  Green,  3  M.  &  K.  699. 


CH.  XXV.]  REGISTRATION.  675 

made  by  trustees  on  behalf  of  an  infant.^  So,  if  the  mort- 
gagor act  as  the  mortgagee's  attorney,  notice  to  the  former 
will  bind  the  latter,  if  given  in  re  gestdP- 

27  a.  A  tenant  for  life,  with  a  power  to  charge  <£ 20,000 
for  the  portions  of  younger  children,  mortgaged  his  life-estate, 
and  covenanted  with  some  of  the  mortgagees  not  to  execute 
the  power  without  their  consent.  He  afterwards  exercised 
the  power  for  the  benefit  of  his  children,  and  created  a 
long  term  to  secure  the  X  20,000 ;  and,  upon  the  marriage  of 
one  of  his  daughters,  appointed  £5,000  to  her  for  a  portion. 
The  trustees  and  appointees  had  notice  of  the  mortgage 
and  of  the  covenant.  Held,  the  mortgage  should  have  pri- 
ority over  the  title  of  the  appointees.^ 

28.  Two  persons,  purchasing  land,  made  a  mortgage  for 
the  price,  which  was  not  recorded.  Afterwards  one  of  them, 
by  a  deed  of  trust,  conveyed  an  undivided  half  for  the  pay- 
ment of  certain  debts  ;  under  which  deed  a  sale  was  ordered 
by  the  Court  of  Chancery,  and  made,  and  the  interest  of  the 
grantor  purchased  by  one  not  having  notice  of  the  mortgage. 
Held,  the  mortgage  might  be  enforced  against  the  residue  of 
the  land,  for  the  amount  due,  and  that  the  other  mortgagor 
must  look  to  the  grantor  for  reimbursement.* 

29.  A  subsequent  mortgagee  with  notice  cannot  avail 
himself  of  any  misdescription  in  the  former  mortgage,  which 
would  be  corrected  in  equity  as  between  the  first  mortgagee 
and  the  mortgagor.^ 

30.  In  Frazer  v.  Jones,^  it  was  held,  that  a  statement 
falsely  made  by  the  mortgagor,  and  recited  in  the  mortgage, 
that  he  had  -made  a  prior  charge  upon  the  land,  did  not 
oblige  the  mortgagee  to  inquire  into  the  truth  of  such  charge, 
and  excused  him  for  leaving  the  title-deeds  in  the  hands  of 
the  mortgagor. 

31.  In  Maryland,  where  an  omission  to  record  a  mortgage 

1  Toulmin  v.  Steerc,  3  Mer.  210.  «  Ohio  Life,  &c.  v.  Ledyard,  8  Ala. 

-  Drjden  v.  Frost,  3  M.  &  C.  673.  866. 

^  Hurst  V.  Hurst,  19  Enj;.  Law  &  Eq.  ^  Woodworth  v.  Guzman,  1  Call.  203. 

374.  **  5  Hare,  475. 


H76  THE    LAW    OF    MORTGAGES.  [CH.  XXV. 

has  occurred,  without  fraudulent  design,  the  mortgage  will 
be  decreed  to  be  recorded,  saving  the  rights  of  subsequent 
purchasers  and  creditors,  without  notice  ;  and,  upon  a  bill  by 
the  mortgagee,  a  sale  of  the  mortgagor's  interest  at  the  time 
of  its  execution  may  be  decreed,  with  a  like  saving.'  But 
where  the  security  afforded  by  an  unrecorded  mortgage  has 
been  abandoned  for  other  security,  given  by  the  debtor  and 
accepted  by  the  creditor,  the  mortgage  will  not  be  decreed  to 
be  recorded.^ 

1  Sprif,'g  V.  hyles,  2  Gill  &  J.  446.  ^  15;^. 


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